thank you your honor and may it please the court in march two thousand and eleven appellant joseph cooney went completely blind in one eye as a result of that unexpected loss of sight mr cooney experienced substantial limitations in his ability to read walk and drive given his sudden disability mr cooney sought a modest accommodation from barry law school to extend the time in which he was required to submit an appellate brief for class the school refused any accommodation whatsoever regarding the brief that refusal violated the americans with disabilities act and nevertheless granting summary judgment to bury the district court committed multiple errors of law that require this court to remained first and foremost in concluding that mr berry was not actually disabled the district court failed to account for the two thousand and eight amendments to the eighty eight instead analyzing mr coo needs disability under many cases but as this court observed in the mazzeo decision in two thousand and fourteen the two thousand and eight amendments were specifically enacted to broaden the construction of disability and make clear that establishing actual disability is not meant to be demanding indeed the supreme court even before those amendments observed in the albertson's case that people with monocular vision like mr cooney quote ordinarily it will meet the find in the record what the date of the brief deadline was and how long between the brief and the oral arguments that were scared you and how clear on that particular point about the precise calendar of brief deadlines and are doing a how long how long yes i don't know if the record is clear on that but i what i would say is that  the rebuttal put forth by barry is that even a single day of an extension would have been impossible because as of the circumstances because of supposedly being able to give an advantage to the other couple of days but we know even a week maybe between the deadline for the briefs and the beginning of the oral argument specially if the oral arguments only went for a couple of days  and specially in light of your client's testimony and position that he would have needed a week or ten days not shew you a deuced enough evidence to get over the burden on my client i think there's also a burden on barry to satisfy you know to put forth evidence that that somehow would have negated that particular that particular concern that you have number two in relation to the specific circumstances  here i particularly don't think it's that on reasonable to ask for you know another student it isn't as if there could be you know one day or two days later that that other student couldn't submit a particular brief i mean if you think about the circumstances of where this is there is record evidence that the oral arguments were scheduled over a number of days how do we know i don't know the exact number your honor but the record does say is over several days and it is not as if that other student was getting some sort of advantage i mean the brief would have been turned in presumably to the professor not to mr cooney it's not as if he would have seen it it's not as if the students were going to these two students were going to see everyone else's briefs and again it was it was on some regents we don't know how many days but if it were a week undue hardship need not make a reasonable accommodation and with all respect i just don't think that that is a great undue hardship if you look at the statute and the regulations that talks about an extraordinary financial burden a significant burden i just don't think this rises to that level i would also like to make a quick point about this idea of deference to the institution there are certainly cases that talk about granting deference to universities academic decisions academic standards however those cases are in the context where the the eighty eight plaintiffs or often a due process plaintiff is trying really to sort of effect wholesale structural changes to the entire academic program for example saying well i know that you say you know one point five is g p a cut off but i would like it to be one point two five or it wouldn't record he was treated substantially different from others who are disabled i think there is a record what could in the evidence on that regarding particularly count two and i think mr cooney is going to be addressing count two in that respect but i don't think that that's something that for count one or count three and four is relevant and just to return to my point to my point about deferen client did not tell the committee that made this decision that he had been denied the accommodation with respect to the briefing so that that committee is understand it was wholly in or out of that fact and and in effect only that he had fallen by low dismissal such that even the draft letter does indicate a causal connection between his disability and the and the actions of the comm but on the other hand it is merely a statement which was absolutely obviously true if they did not know about the denial of accommodation assuming he had all the commendations he asked  so policy would have been dismissed from the law school regardless of the claim for the failure to accommodate the brief situation that is to say the question becomes  the the the accommodation on the brief and what the committee is considering what it's talking about because of his disability because of his condition that you know they asked about during the meeting as well i mean i think that it's not just the letter that there's record evidence  concerned about that yes obviously our and again you know if we're before a jury you know maybe there are jury arguments one side or another but i think that the summary judgment stage when you're looking at the record i don't know if they don't know and i assume from your answer to my question that there is no no evidence that the committee knew he had requested an accommodation which had been there but i think that i don't know if the record is clear on that i think that that means that there is no lation with respect to issue three zero by itself oh holy aside from one because that was just a mere statement even the draft left that says he's got these disabilities and with these disabilities he can't make it he came make the grade that's just a statement that he's not otherwise qualified but with all respect i think there's another way to look at it i think a jury might look at it but again i don't even think we need to get there because of count one i think i agree with you that if he provide heels on count one the remedy may well include vacation and the  decision about extended probation because that would be an appropriate remedy for not having made the accommodation that was required under the law if you provide one so i think only had to meet with her once and no further analysis was required when i first met with her for academic success director lisa cursed she told me that we would be meeting on a regular basis on a weekly or bi weekly rate and stored and i said no because it would take months and i would have to leave school now and i couldn't continue and i already paid my tuition except for it but then she became very agitated and she said i recommend you take a leave of absence to have the i fixed and then come back to school and i disagreed with her when i told her this she was again very confrontational with me and i go baited and she said we're done you can go i said we're done she goes yes you got to come back any more the way she treated me with such hostility i was actually relieved that i didn't have to see this woman ever again to defend it stating any motion for  student only had to meet with the academic success director one time while on probation lisa curtis stated me to the contrary directly to me that when he had me on a regular basis as other students also stated the same as in  of mr joshua joshua irwin who had to meet him on a regular basis and he had a poor interaction with lisa curse too and she actually directly conveyed to him that disabled students do not depose her the defendants said she didn't work there anymore all of a sudden and i couldn't get i couldn't get my subpoenas in because i guess they tipped her off i couldn't get service and then in the hearing for what measures would be required to improve the student you can't just meet someone one time wave a magic wand and say now you're going to pass so it's not reasonable to actually believe that you've got to me or one time and it was through our campus everybody was complaining about the woman you know being hostile to people and i believe she had a certain hostility towards disabled students and i'll tell you my theory why is because they're afraid of the bar my name is david nagle of the richmond virginia bar i'm with the firm jackson lewis although i was not involved here in the district court proceedings or even the briefing at this court but it's my pleasure to be with you today first not to get your law clark in any trouble church anderson i would draw your attention to document one forty dash six page to the plaintiff's response to the come to the schools motion for summary judgment and what he attached there is what he has the handwritten notation of mcdowell so all of us and it shows specifically that on monday april fourth two hard copies of the appellate brief are due on monday april fourth no later than seven pm no class on wednesday the six and oral arguments are friday saturday and sunday april eighth ninth and tenth out to play with and and while it is it is certainly possible that mr cooney was confused over over the date of his request i'll point out that the first indication that he was requesting something with respect to that class is the e mail that he sent on the morning of april eight you'll recall that the exchange of emails was with respect to his desire to wear sunglasses trying oral argument that professor immediately granted that mr  would have provided a ease with which mr if you suggest that the whole oral argument calendar could have been rearranged if it was a few days before he sent the email about  the sunglasses maybe it was only a few days prior to that but it was certainly a very short period of time but the more i mean the question is who was the accommodation that he requested reasonable and could it have been could he have been accommodated then this seems like a really fact intensive kind of discussion to be having on on a summary judgment you know if your honor i said i would i would to we look to the reasonableness both of the request and the hardship that it is that scotched his evidence seems to suggest that he didn't make the request and he never reduced it to writing and in fact professor mcdowell's in her declaration said she never remembered any requests from him his complaint if you look at both his original complaint and first and second amended complaint does not a that he requested that he requested that accommodation he rather says in his complaint to professor make out i didn't offer an accommodation of reasonableness of the request the timeliness of the request because those end up being factors that have to be considered with respect to the hardship or burden that's caused by the employer counsel when we're finally given that this course of course i drew an assumption that all this would be done before exams so the students could be preparing to take them and take that sounds very reasonable your honor i can't i can't say that with regard to the district court order do you acknowledge that she that the district judge use the standard from before the time the americans  disabilities act was amended i mean none of the cases you cited reflected the new standards well i had intended before getting into the questions to start by saying it's fortunate that this as as you know there are very few cases said that that had been applying the eighty a standard at that point but there's a diplomatic way and sam the eleventh circuit hadn't gotten it right either but what what i would what i would point to though is if you go to the first paragraph in her decision i believe it's on page where she starts explaining her conclusion the first line is plaintiff was not actually to most people in the general population that's the revised regulation that was issued post eighty eight so while she was not citing cases and i will acknowledge she was a he still failed to meet that disability that the standard of the individual qualified individual with a disability but what she was supplying and following the standard of the new regulations that's how she cited that either seek you went a on the issue that suggested that in many instances somebody with with a single five would be able but i would suggest that if we look at the record here it's always an individual lies to sesame and we have an individual that in three semesters of attending law school asked only for the ability to wear sunglasses in one class an additional ninety minutes on final exams in two semesters and for this extension we don't know quite how far in advance of time to file briefing he didn't ask for any of the things that individuals with vision impairment on their alumni stand on the other hand the one semester that he had both as he had two which was satisfactory passing the academic counselor courage she said you know so there's a lot of evidence it seems to me that he is in fact is able and almost no evidence got to the decision through a route that i am not fully comfortable with is not the end of the case it does not require reversal on that issue alone because i think for the reasons i've explained apparently not very persuasively i think one can still find in the record evidence to support that district court conclusion that he's not disabled but even in the event that this court were to conclude applying the a standard and suggest that he does meet the definition of an individual with a disability then we have to look at it both to discrimination and that then i'll a pretty simple accommodation  discrimination that would merely put shift the burden to us to articulate a legitimate nondiscriminatory reason certainly was done hard to do and you've got this memo in the record saying he's not going to be able to make it because of his physical difficulties well your honor i think there's a little bit of a gut check go in there because the record shows mr cooney walked in and said let me tell you all the reasons i had a tough semester i had this health issue my girlfriend had back surgery i had a hurricane in new jersey i had all these things going on and so the initial draft of the memo acknowledged all of the things that he had brought up because remember they did since physical difficulties well certainly that would that was among the things that he brought up yes ma'am there's no question on that that that that it is there but the concern expressed by a fellow committee member was we aren't supposed to be getting into all the things that he brings up to explain his performance we're supposed to just be applying the academic that's all that we're entitle to address in the handbook says we have to look at that last semester and see if there is a reason to anticipate that he'll do better and i would respectfully submit that taking that out was in fact for the reason that it was expressed it was beyond their purview they weren't supposed to be the ones trying to identify if he had every right to reject the advice and obviously he did and and he may contemplated some point if that was a prudent decision or not but that was what an academic counsel has let me ask you a the subject you are on now with respect to the deference that we owe to the academic decision makers and i'm thinking in particular about the brief extension yes i think the law is to the effect considers the request and he says in his brief that there was no such serious consideration i haven't read all of his deposition but i have read parts of it and the parts he cites not consider what he was requesting namely extra for the pre i think mr cooney deposition was did he didn't get into a specific discussion of the amount of time that he needed that week or ten days because she had his perception was that she had told him i think the quote is give says something along the lines of i'm sorry i can't help you with that date and so it doesn't appear that there was further discussion i would note that the professor's declaration is that she doesn't recall any discussion about a request for an extension in the in consistency of the dates makes it i think somewhat difficult to assume that he has really put that fact into into issue and in other words what you saying is that if his request came after april eighth which was the first day of the oral arguments themselves they would much to talk about so certainly that's the case but but i presumed it if he made it it must have been some time somewhat earlier part of his deposition testimony is that there was great concern about a formatting issue and there's a e mail from the professor to the class indicating that there would be a meeting on april second to discuss formatting wild speculation just because the record doesn't hold together on mr cooney as allegation there but perhaps there was a time that he brought it up then several days before otherwise the dates don't make any sense on it and i see that my time has expired on arrival thank you very much thank well i'm happy to point you to evidence that that certainly at a minimum raises a factual dispute but i think actually refutes that pretty well and this is at page thirty one of mr quinn is deposition actually says in march two thousand and eleven is when mr cooney went to the disability office which is where he was directed and supposed to go under the handbook i went to the office and discussed it brought up i you know i thought it was pretty clear that he didn't discuss the extension of the brief and he was discussing the things am i wrong about not according to his own testimony in the record which says when i brought up the appellate brief at this march two thousand and eleven meeting with the office of disability services they said i'd have to go talk to my instructor because it's not a test which i didn't understand so you know i think already we have a point at which mr cooney has brought this up to the appropriate individuals that he go to see the professor with  respect yes and so i e mailed her something and i stopped by her office even later and she said i'm sorry there's nothing i can do one of what we talking about what well i had that the particular date of that e mail and that conversation i believe is not the record  specific page of his brief i can point you to the specific page in his deposition testimony that's what i'm sure this is page thirty three of his deposition where it says with regard to the appellate brief what was the accommodation asked for i asked for extra time to that showing certainly putting it to a factual dispute that he asked about this before the brief was due and then continuing on because i know this is another colloquy with my friend across the aisle he said  about what did she say her only answer aside from there's nothing i can do is she said because i had an oral argument against my adversary she couldn't do that because there was a date certain and she couldn't delay it and i think that you know we've already heard that there were three dates for o arguments that the due date for the brief was able forth and again this is a situation where there was sort of literally no accommodation not even a one day or two day and as somebody who has written a brief or two i can say that even a one or two day was eleventh circuit precedent addressing the two thousand and eight amendments at the time this decision was written it's the mazzeo decision by this court i have to cite here is that seven forty six fed third twelve sixty four and it's very clear clearly talking about the changes that were made that included that would encompass two of the errors that the district court made regarding actual disability number one looking just at saying that well there might not be substantial limitations on one life activity so therefore it doesn't count for the rest of them that's not true anymore according to the two thousand and eight amendments and mazzeo and then number two of course to me earlier term of effects which are squarely foreclosed by the two thousand and eight amendments and i want to point out that there's really almost no dispute about this in barry's brief they bring up this vision exception which is really their only response to it and that only has to do with eyeglasses and contact lenses not