F I L E D

United States Court of Appeals

Tenth Circuit

MAY 24 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN M. McGUINNESS,

Plaintiff-Appellant,

v.

REGENTS OF THE UNIVERSITY OF

NEW MEXICO; UNIVERSITY OF

NEW MEXICO OFFICE OF EQUAL

OPPORTUNITY PROGRAMS;

UNIVERSITY OF NEW MEXICO

AFFIRMATIVE ACTION

PROGRAMS COMMITTEE; MARY

SUE COLEMAN, individually and as

Provost/Acting President of the

University of New Mexico; ANNE B.

THOMAS, individually and as

Director, University of New Mexico

Equal Opportunity Programs;

THERESA V. RAMOS, individually

and as Assistant Equal Opportunity

Specialist, University of New Mexico

Equal Opportunity Programs;

THOMASINE P. ROSS, individually

and as Senior or Equal Opportunity

Specialist, University of New Mexico

No. 98-2224

(District of New Mexico)

(D.C. No. CIV-97-437-MV)
*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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 Equal Opportunity Programs;

MICHAEL FISHER, individually and

as Chair, University of New Mexico

Affirmative Action Programs

Committee Hearing panel; MAUREEN

SANDERS and FRED PEREZ,

individually and as Members of the

University of New Mexico Affirmative

Action Programs Committee Hearing

Panel and UNKNOWN MEMBERS OF

THE UNIVERSITY OF NEW

MEXICO AFFIRMATIVE ACTION

PROGRAMS COMMITTEE,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before PORFILIO, BRORBY, and MURPHY, Circuit Judges. 

Kevin M. McGuinness appeals the dismissal of his suit against the Regents

of the University of New Mexico (UNM), UNM’s Office of Equal Opportunity

Programs, UNM’s Affirmative Action Programs Committee, and various

individuals employed by UNM. This court exercises jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRMS.
1

 The district court granted summary judgment for UNM because

McGuinness had not proved that he was disabled under the ADA. McGuinness

appealed, and this court affirmed, holding that McGuinness was not disabled

under the ADA and the accommodation McGuinness sought was not reasonable. 

See McGuinness v. University of N.M. Sch. of Med., 170 F.3d 974, 978-80 (10th

Cir. 1998).

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This is McGuinness’s third suit against UNM in his attempt to right the

wrong he alleges he suffered when he was not allowed to proceed to his secondyear of medical school at UNM. McGuinness was a first-year medical student at

UNM’s medical school in 1992. He was required to take a course in

biochemistry. Unfortunately, McGuinness suffers from anxiety attacks when

taking chemistry or math tests. McGuinness discussed his anxiety with his

professor, and he was told that if he achieved a 70% grade, he would pass the

class. Because he did not receive a passing grade, he was required to take a

make-up exam in order to pass the course. McGuinness refused. As a result,

McGuinness was not permitted to proceed to his second-year of medical school.

On November 27, 1995, McGuinness filed suit in federal district court

against UNM’s Medical School, alleging violations of the ADA for failure to

reasonably accommodate his test anxiety. ( McGuinness I ).1 On August 29, 1996,

McGuinness filed suit in state court against the Regents of UNM, alleging tort
2 The District Court of Bernalillo County had granted summary judgment

for UNM because McGuinness’s claims were barred by the statutes of limitations. 

McGuinness appealed, and the Court of Appeals for the State of New Mexico

affirmed. See McGuinness v. Regents of the Univ. of N.M., No. 19,066 (N.M. Ct.

App. Dec. 30 1998).

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and contract claims, all based upon his dismissal from the medical school. 

(McGuinness II ).2

 

On April 2, 1997, McGuinness filed this suit, alleging violations of the

ADA and the Rehabilitation Act of 1973. ( McGuinness III ). Specifically,

McGuinness asserted that UNM’s Office of Equal Opportunity Programs (OEOP)

ignored his complaints of discrimination, and when compelled to investigate them

by the United States Department of Education, the OEOP performed only a

cursory inquiry. McGuinness further alleged that the hearing panel which was

convened to review the OEOP’s determination denied him due process rights and

retaliated against him for bringing his complaints. 

The United States District Court for the District of New Mexico granted

UNM’s motion to dismiss on July 28, 1998, holding that the district court’s grant

of summary judgment for UNM in McGuinness I operated as claim preclusion. 

On appeal, McGuinness asserts that the district court erred by: (1)

concluding that there was privity between UNM’s Medical School and the

Regents of UNM; (2) determining that the two causes of action were the same;
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and (3) ignoring a deficiency which undermined the fundamental fairness of the

original proceedings.

The district court found there to be privity between UNM’s Medical School

and UNM’s Board of Regents because the management and control of UNM,

including the Medical School, is vested in the Board of Regents by New Mexico

statute. See Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1468-69

(10th Cir. 1993) (stating that privity may be established if the “party to the first

suit represented the interests of the party to the second suit” (quotation omitted)). 

The district court could find no independent status for the Medical School under

New Mexico law, and McGuinness offers none on appeal.

Applying the Restatement (Second) of Judgments’ transactional approach,

the district court also concluded that both suits arose from the same cause of

action, namely, McGuinness’s displeasure with being dismissed from UNM’s

Medical School. See Petromanagement Corp. v. Acme-Thomas Joint Venture, 835

F.2d 1329, 1332-33 (10th Cir. 1988) (adopting Restatement’s transactional test).

Finally, noting that no procedural limitations were suffered by McGuinness

in McGuinness I, the district court concluded that McGuinness was afforded a full

and fair opportunity to litigate his case in the prior suit. See Sil-Flo, Inc. v.

SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir. 1990) (inquiring whether there were
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“significant procedural limitations in the prior proceeding” in determining

whether the party had a full and fair opportunity to litigate).

After a de novo review of the parties’ briefs and contentions, the district

court order, and the entire record on appeal, this court finds no reversible error

and affirms for substantially the same reasons set forth in the district court’s

Order Granting Motion for Dismissal. The judgment of the United States District

Court for the District of New Mexico is AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge