## 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University of New Mexico No. 98-2224 (District of New Mexico) (D.C. No. CIV-97-437-MV)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- 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 su it against the Regents of the University of New Mexico (UNM), UNM’s Office of Equal Opportunity Programs, UNM’s Affirmative Action Programs Committ ee, 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 UN M because

McGuinness had not proved that he was disabled unde r the ADA. McGuinness appealed, and this court affirmed, holding that McG uinness was not disabled under the ADA and the accommodation McGuinness soug ht was not reasonable. See McGuinness v. University of N.M. Sch. of Med. , 170 F.3d 974, 978-80 (10th Cir. 1998). -3- This is McGuinness’s third suit against UNM in his attempt to right the wrong he alleges he suffered when he was not allowe d to proceed to his secondyear of medical school at UNM. McGuinness was a fi rst-year medical student at UNM’s medical school in 1992. He was required to t ake a course in biochemistry. Unfortunately, McGuinness suffers fr om anxiety attacks when taking chemistry or math tests. McGuinness discuss ed 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. McGuinne ss refused. As a result, McGuinness was not permitted to proceed to his seco nd-year of medical school. On November 27, 1995, McGuinness filed suit in fede ral district court against UNM’s Medical School, alleging violations o f 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 Re gents of UNM, alleging tort2 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). -4- and contract claims, all based upon his dismissal f rom the medical school. (McGuinness II ). 2 On April 2, 1997, McGuinness filed this suit, alleg ing violations of the ADA and the Rehabilitation Act of 1973. ( McGuinness III ). Specifically, McGuinness asserted that UNM’s Office of Equal Oppo rtunity Programs (OEOP) ignored his complaints of discrimination, and when compelled to investigate them by the United States Department of Education, the O EOP performed only a cursory inquiry. McGuinness further alleged that t he 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 o f 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 cou rt erred by: (1) concluding that there was privity between UNM’s Med ical School and the Regents of UNM; (2) determining that the two causes of action were the same;-5-

and (3) ignoring a deficiency which undermined the fundamental fairness of the original proceedings. The district court found there to be privity betwee n 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 Boar d 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 estab lished 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 appea l. Applying the Restatement (Second) of Judgments’ transactional approach, the district court also concluded that both suits a rose 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 pr ior suit. See Sil-Flo, Inc. v. SFHC, Inc ., 917 F.2d 1507, 1521 (10th Cir. 1990) (inquiring whether there were-6-

“significant procedural limitations in the prior pr oceeding” in determining whether the party had a full and fair opportunity t o 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