United States Court of Appeals

For the Eighth Circuit

___________________________

No. 11-3336/3461

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Michael S. Argenyi

lllllllllllllllllllll Plaintiff - Appellant/Cross-Appellee

v.

Creighton University

lllllllllllllllllllll Defendant - Appellee/Cross-Appellant

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United States; Alexander Graham Bell Association for the Deaf and Hard of

Hearing; National Disability Rights Network; Association of Medical

Professionals with Hearing Losses

lllllllllllllllllllll Amici on Behalf of Appellant/Cross-Appellee

____________

 Appeal from United States District Court 

for the District of Nebraska - Omaha

____________

 Submitted: November 14, 2012

 Filed: January 15, 2013

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

Michael Argenyi, a young man with a serious hearing impairment, moved from

Seattle to Omaha, Nebraska to attend medicalschool at Creighton University. Before

enrolling Argenyi requested specific accommodationsfromCreighton for his hearing

impairment. They were denied, but Argenyi repeatedly renewed them during his first

two years at Creighton Medical School. He explained that without these

accommodations hewas unable to follow lectures, participate in labs, or communicate

with patients.

Because Creighton failed to provide what he considered necessary and

reasonable accommodations, Argenyi brought this action under Title III of the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12182, and § 504 of the

Rehabilitation Act, 29 U.S.C. § 794. The district court decided that Argenyi had not

shown his requested accommodations were necessaryand granted summaryjudgment

to Creighton while denying its motion for costs. Argenyi and Creighton both appeal.

1

We reverse and remand.

I.

Argenyi began using hearing aids before he was one year old, but his parents

primarily communicated with himthrough spoken language. To distinguish between

sounds that appear the same on a speaker’s lips Argenyi relied on "cued speech,"

which uses hand signals to represent sounds. He does not know sign language. In

eighth grade Argenyi began using Communication Access Real-time Transcription

(CART), a system which transcribes spoken words into text on a computer screen. 

Several amici support Argenyi's appeal: United States Department of Justice, 1

the Alexander Graham Bell Association for the Deaf and Hard of Hearing and

National Disability Rights Network, and the Association of Medical Professionals

with Hearing Losses.

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Argenyi received a cochlear implant in his right ear in September 2004 before he

began undergraduate studies at Seattle University. That university provided CART

for Argenyi’s lectures and a cued speech interpreter for his lab courses, and Argenyi

graduated from Seattle in 2008 with a 3.87 grade point average.

Argenyi stated in his application to Creighton University Medical School in

2009 that he was "hearing-impaired." Upon his admission Argenyi explained to

Michael Kavan, Creighton's associate dean for student affairs, that he would require

accommodation "similar to what [he] had used in the past . . . primarily interpretation

or captioning services during lectures and teaching sessions." Dean Kavan asked for

more information about the nature of his hearing disability and a more specific

request for the type of accommodation he needed.

Argenyi's otolaryngologist, Dr. Douglas Backous, responded that Argenyi

"would benefit from closed captioning" and an FM system which transmits sound

directly into cochlear implants. Argenyi also renewed his requests that Creighton

supply CART for his lectures, a cued speech interpreter for labs, and an FM system

for small learning groups of eight students or fewer. Kavan replied that the written

requests submitted by Dr. Backous and Argenyi were inadequate because they

differed and the doctor had not made a "direct request."

Before starting medical school Argenyi received a bilateral cochlear implant,

and his implant audiologist and Dr. Backous both recommended that to succeed in his

studies he would also need CART, a cued speech interpreter, and the FM system. Dr.

Backous wrote to Creighton that Argenyi "remains . . . deaf regardless of if he is or

is not using his cochlear implants . . . . [He] has a bilateral profound sensorineural

hearing loss." Before Argenyi's enrollment, Creighton's medical education

management team met to review his requests for accommodation. Dean Kavan then

informed Argenyi that Creighton would provide him with an FM system for lectures,

small groups, and labs. Argenyi agreed to give the FM system "a wholehearted try."

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Shortly before classes began on August 16, 2009, Argenyi renewed his original

requests for accommodations. Creighton denied them. After trying the FM system

for two weeks, Argenyi informed Dean Kavan that he needed to obtain CART for

himself. He wrote the dean that "[t]he [university's] accommodations are inadequate

as evidenced by the level of stress and fatigue I am experiencing, as well as the

amount of information I am missing . . . . [They] do not provide for meaningful

participation nor independence as a student, and also put me at a significant

disadvantage academically." Dr. Backous wrote to Creighton in support of Argenyi's

needs, urging that

It is imperative that [Argenyi] have access to visual cues for everyday

communication and education. Visual cues include, but are not limited

to closed captioning on videos and films, real time captioning for

lectures and discussions, and speech reading cues for one-on-one

interactions.

The dean responded by offering Argenyi only enhanced note taking services. 

In late September 2009 Argenyi brought this action against Creighton, alleging

violations of Title III of the ADA and § 504 of the Rehabilitation Act by the

university's failure to provide "auxiliary aids and services to ensure effective

communication and an equal opportunity to participate in and benefit fromthe School

of Medicine." Argenyi sought a declaratory judgment compelling Creighton to

provide him with "auxiliary aids and servicesto ensure effective communication," as

well as compensatory damages and attorney fees. 

Argenyi continued to attend class and pursue his medical education. In

February 2010 he consulted ear specialist Dr. Britt Thedinger as an expert witness. 

Dr. Thedinger tested the Creighton FM system and found that with the background

noise that Argenyi had only 38 percent speech perception. Dr. Thedinger determined

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that "the FM system does not provide any significant benefit and . . . actually reduces

[Argenyi's] discrimination ability."

Creighton provided no further auxiliary support or services during Argenyi's

first year of medicalschool, and Argenyi borrowed approximately $53,000 to pay for

CART and interpreters himself. In a document publicly available on its website,

Creighton estimates that the first year of its medical school costs approximately

$71,000 for an average student before financial aid. After paying for his

accommodations, the effective cost to Argenyi for his first year of medicalschool was

therefore more than $120,000.

Argenyi renewed his request for accommodation before his second year of

medical school. In response Creighton offered to provide an interpreter for lectures

and a seat next to the instructor for small group discussions. Argenyi found the

interpreter not sufficient to convey complex new vocabulary and again took out

approximately $61,000 in loans to pay for CART.

The second year curriculum included clinical courses in which students

interviewed and cared for patients. For those courses Creighton refused to allow

Argenyi to use an interpreter even if he paid for one himself. Argenyi tried the

clinical courses without an interpreter for approximately two weeks and then renewed

his request for one. As he explained on September 21, 2010,

I met with patients . . . and found that I could not understand all of what

patients and others at the clinic said. With some patients I understood

very little . . . . I know you said I only have to show up to pass, but I

want to learn how to be a doctor and I think it is important to understand

what the patients are saying to me.

Argenyi and Creighton entered into settlement negotiations in January 2011,

and the university temporarily provided himwith an interpreter in his clinical courses. 

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Settlement talks ended the following month, however, and Argenyi was again

prohibited from using an interpreter. Argenyi nevertheless succeeded in passing his

clinical and other courses, but after his second year he took a leave of absence

pending the resolution of his claims under the ADA and the Rehabilitation Act.

In July 2011 Argenyi and Creighton both moved for summary judgment. The

district court granted summary judgment to Creighton after it concluded that (1)

Argenyi had not shown the accommodations he requested were "necessary" within

the meaning of the statutes and (2) that Creighton had provided "effective

communication" asrequired by both laws. The court also rejected Argenyi's affidavit

as "unsupported self-serving allegations," denied him relief, and ordered each party

to pay its own costs. 

Argenyi appeals the district court's grant of summary judgment to Creighton. 

Creighton cross appeals the denial of costs, asserting that the district court erred by

failing to provide a supporting rationale.

II.

This court reviews a district court’s grant of summary judgment de novo. 

Minnesota ex rel. N. Pac. Ctr., Inc. v. BNSF R.R. Co., 686 F.3d 567, 571 (8th Cir.

2012). Facts must be construed favorably to the losing party, and Argenyi is to be

given the benefit of all reasonable inferences in the record. Id. Summary judgment

is appropriate only if no genuine dispute exists "as to any material fact and the

movant is entitled to judgment as a matter of law." Id. (citation omitted). To

establish a genuine issue of material fact, Argenyi may not "merely point to selfserving allegations, but must substantiate allegations with sufficient probative

evidence that would permit a finding in [his] favor." Davidson & Assocs. v. Jung,

422 F.3d 630, 638 (8th Cir. 2005) (citation omitted). A "party's own testimony is

often self-serving," but the mere fact that Argenyi's factual testimony is favorable to

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his legal claim does not render it incompetent. C.R. Pittman Const. Co., Inc. v. Nat'l

Fire Ins. Co. of Hartford, 453 F. App'x 439, 443 (5th Cir. 2011). 

A.

In granting summary judgment to Creighton the district court disregarded

Argenyi's affidavit, termed it "self-serving," and concluded that "there [was] an

absence of evidence to support [his] claim." There was, however, a variety of

supporting evidence in the record. Argenyi's affidavit must be considered, and its

particular factual allegations scrutinized for "independent documentary evidence" to

support them. O'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir. 1995). In

a case such as this it is especially important to consider the complainant's testimony

carefully because "the individual with a disability is most familiar with his or her

disability and is in the best position to determine what type of aid or service will be

effective." U.S. Dep't of Justice, The Americans with Disabilities Act Title II

Technical Assistance Manual, at II–7.1100 (1993).

Argenyi testified in his affidavit that without CART and interpreters he was

"unable to follow class lectures and classroom dialogue" or "the rapid pace of

dialogue in the clinical setting." He stated that he "began experiencing debilitating

headaches and extreme fatigue" from his "fruitless attempts" to follow lectures, even

though he had "utilized all of [his] time outside of the classroom trying to obtain the

information the other students obtained in the classroom."

In clinical courses Argenyi and his patients frequently failed to communicate

effectively. He described in his affidavit a "consult with the parents of a two month

old, with communication limited such that [he] did not know . . . why the infant was

hospitalized," as well as his struggle to communicate with "emotional family

members, patients with accents, and . . . a patient with a history of a broken jaw." 

Argenyi stated that Creighton had done "nothing to remedy [his] inability to

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understand what was happening in the clinic" and eventually advised him to "refrain

from making requests for additional auxiliary aids and services." 

After a careful review of the record, we cannot agree with the district court's

conclusion that Argenyi's allegations were "unsupported." The record contains five

letters from Argenyi's doctors to Creighton confirming his need for additional

auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first

month of medical school that "[i]t is imperative that [Argenyi] have access to visual

cues for everyday communication and education," including "but . . . not limited to"

closed captioning, CART, and a cued speech interpreter. He urged Creighton to

consider Argenyi's specific requests, explaining that Argenyi "is the best person to

judge what [assistance may be necessary] since no one else can really understand

what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second

year, stating that the FM system actually worsened Argenyi's speech discrimination

ability to 38 percent comprehension. In addition the record contains correspondence

between Argenyi and Creighton in which he repeated requests for an interpreter in

clinical courses, which were all denied. During his first two years of medicalschool,

Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he

needed to obtain the medical education he sought, and which Creighton declined to

provide. 

Argenyi's affidavit, corroborated by evidence from Dr. Backous and Dr.

Thedinger and his own need to obtain private loans for CART and interpreters,

providesstrong evidence that Creighton's accommodations were inadequate and that

the university was not entitled to summary judgment. We conclude that the district

court erred by disregarding Argenyi's affidavit, the "independent documentary

evidence" offered in its support, and all aspects of the record before it. O'Bryan, 64

F.3d at 1191.

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B.

The evidence presented by Argenyi must be viewed under the legal standard

for ADA and Rehabilitation Act claims. To assert his discrimination claim under

either statute, Argenyi must show that (1) he is disabled and academically qualified

to attend Creighton, (2) Creighton is a "place of public accommodation (for ADA

purposes) and receives federal funding (for Rehabilitation Act purposes)," and (3)

Creighton discriminated against him based on his disability. Mershon v. St. Louis

Univ., 442 F.3d 1069, 1076–77 (8th Cir. 2006). There is no dispute here as to the

first two elements. The key question is whether Creighton discriminated against

Argenyi by failing to provide necessary auxiliary aids and services during his first

year of medical school and by refusing to permit Argenyi to use an interpreter during

his second year clinic. 

1.

Congress recognized in enacting the ADA that "individuals with disabilities

continually encounter various forms of discrimination, including . . . communication

barriers." 42 U.S.C. § 12101(a)(5). The purpose of the ADA was to "provide clear,

strong, consistent, enforceable standards" to remedy discrimination in employment

(Title I), in the services of public entities (Title II), and in places of public

accommodation (Title III). Id. § 12101(b)(2). Under Title III of the ADA, places of

public accommodation include "undergraduate[] or postgraduate private schools" like

Creighton. 28 C.F.R. § 36.104. 

Discrimination is defined by the ADA as a failure to "make reasonable

modifications in policies, practices, or procedures" that are "necessary to afford . . .

privileges, advantages, or accommodations to individuals with disabilities" or a

failure to "take such steps as may be necessary to ensure that no individual with a

disability is . . . treated differently than other individuals because of the absence of

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auxiliary aids and services." Id. § 12182(b)(2)(A)(ii), (iii). In furtherance of the

congressional purpose, Title III of the ADA prohibits places of public

accommodation such as Creighton from discriminating against individuals with

disabilities "in the full and equal enjoyment" of the "privileges, advantages, or

accommodations" they offer. 42 U.S.C. § 12182(a). 

Congress specifically intended the ADA to remedy "the discriminatory effects

of . . . communication barriers" for individuals with hearing disabilities. 42 U.S.C.

§ 12101(a)(5). Regulations promulgated under Title III of the ADA require the

provision of "appropriate auxiliary aids and services where necessary to ensure

effective communication with individuals with disabilities," 28C.F.R. § 36.303(c)(1),

and instruct places of public accommodation to "consult with individuals with

disabilities whenever possible to determine what type of auxiliary aid is needed to

ensure effective communication," id. § 36.303(c)(1)(ii). The regulationsspecifically

provide that appropriate aids and servicesfor deaf individuals include interpreters and

CART. Id. § 36.303(b)(1).

The Rehabilitation Act is similar to the ADA. Congress enacted the

Rehabilitation Act as a "comprehensive federal program," Consol. Rail Corp. v.

Darrone, 465 U.S. 624, 626 (1984), to ensure that individuals with disabilities would

not "be denied the benefits of[] or be subjected to discrimination under any program

or activity" receiving federal funding, 29 U.S.C. § 794(a). To achieve that purpose

the Rehabilitation Act requires entitiesreceiving federal funding to furnish auxiliary

aids which "afford handicapped persons equal opportunity to obtain the same result,

to gain the same benefit, or to reach the same level of achievement" as others. 45

C.F.R. § 84.4(b)(2). Creighton receives financial assistance from federal agencies

including the Department of Education, so it must comply with § 504 of the

Rehabilitation Act.

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Both the ADA and the Rehabilitation Act are intentionally broad in scope, but

they do not require institutions to provide all requested auxiliary aids and services. 

Instead, each statute requiresthe responsible partiesto provide "necessary" auxiliary

aids and services to individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii)

(ADA); 34 C.F.R. § 104.44(d)(1) (Rehabilitation Act). Since the ADA and the

Rehabilitation Act are "similar in substance," we treat the case law interpreting them

as "interchangeable." Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998). Our

court has never determined the definition of "necessary" under Title III of the ADA

so we must consult the Rehabilitation Act standards as we consider Argenyi's claims

under that statute and under Title III of the ADA.

2.

The Supreme Court has held that § 504 of the Rehabilitation Act requires that

"an otherwise qualified handicapped individual must be provided with meaningful

accessto the benefit that the grantee offers." Alexander v. Choate, 469 U.S. 287, 301

(1985). In applying Alexander, our court has concluded that the Rehabilitation Act

requires a private medical school to provide "reasonable accommodations . . . when

a disabled student would otherwise be denied meaningful access to a university." 

Stern v. Univ. of Osteopathic Med. & Health Sciences, 220 F.3d 906, 908 (8th Cir.

2000) (citing Alexander, 469 U.S. at 301). In that case, a dyslexic student at a private

medical university sued the university under § 504 of the Rehabilitation Act for

failing to provide reasonable accommodationsin testing. Id. at 907. We affirmed the

district court's grant of summary judgment to the university after concluding that the

student had "failed to establish a nexus between his requested testing scheme and his

dyslexia." Id. at 909.

We also applied a "meaningful access" standard to a Rehabilitation Act claim

brought by a hearing impaired prisoner against the Missouri Department of

Corrections for having denied him an interpreter during internal disciplinary

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proceedings. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). The district

court in that case had granted the prisoner summary judgment after determining that

"[t]he undisputed evidence . . . show[ed] that although he ha[d] been provided with

some . . . benefits, he ha[d] not received the full benefits solely because of his

disability." Id. We affirmed on appeal, concluding that the record did not "contain

credible evidence to support a finding that [the prisoner] enjoyed meaningful access

to the prison's internal disciplinary process." Id.

Under a "meaningful access" standard, we have decided that aids and services

"are not required to produce the identical result or level of achievement for

handicapped and nonhandicapped persons," but they nevertheless "must afford

handicapped persons equal opportunity to . . . gain the same benefit." Loye v. Cnty.

of Dakota, 625 F.3d 494, 499 (8th Cir. 2010) (citing Alexander, 469 U.S. at 305). 

The Eleventh Circuit has similarly concluded that the "proper inquiry" under the

Rehabilitation Act to determine if a hospital had provided "necessary" auxiliary aids

to a hearing impaired patient was whether the proffered aids "gave that patient an

equal opportunity to benefit from the hospital's treatment." Liese v. Indian River

Cnty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012). As the court observed in

Liese, that inquiry "is inherently fact-intensive" and "largely depends on context."

Id. at 342–43.

 The meaningful access standard to ensure an equal opportunity is consistent

with the purpose of Title III of the ADA, which is to ensure that all people have "full

and equal enjoyment" of public accommodations regardless of disability. 42 U.S.C.

§ 12182(a). We conclude that § 504 of the Rehabilitation Act and Title III of the

ADA each require Creighton to provide reasonable auxiliary aids and services to

afford Argenyi "meaningful access" or an equal opportunity to gain the same benefit

as his nondisabled peers.

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The Ninth Circuit applied a similar standard to a claim arising under Title III

of the ADA. See Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th

Cir. 2012). There, the district court had granted summary judgment to the defendant

after concluding that Baughman had failed to show that it was "necessary" for her to

use a Segway to visit Disneyland because she would not have been "effectively

excluded" without it. 691 F. Supp. 2d 1092, 1095 (C.D. Cal. 2010). The Ninth

Circuit reversed, reasoning that the ADA "guarantees the disabled more than mere

access to public facilities; it guarantees them 'full and equal enjoyment.'" 685 F.3d

at 1135 (quoting 42 U.S.C. § 12182(a)). The appellate court instructed the Disney

company to "start by considering how their facilities are used by non-disabled guests

and then take reasonable steps to provide disabled guests with a like experience." Id.

Considering Argenyi's Rehabilitation Act and ADA claims together, the district

court granted summary judgment to Creighton after concluding that Argenyi had

failed to show that his requested accommodations were necessary as required under

the ADA. The district court looked to guidance from the Supreme Court's decision

in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), a quite different case from the one

brought by Argenyi. In Martin, a professional golfer with a degenerative circulatory

disorder sought to travel in a golf cart between the eighteen holes at tournaments. 

The Court distinguished that golfer from "players with less serious afflictions that

make walking the course uncomfortable or difficult, but not beyond their capacity. 

In such cases, an accommodation might be reasonable but not necessary." Id. at 682

(emphasis added).

Here, the district court compared Argenyi's situation not with the golfer with

the degenerative disorder who obtained relief in Martin but with those "players with

lessserious afflictions" for whomwalking the course was "not beyond their capacity." 

With this faulty analogy the court reasoned that by use of the auxiliary aids and

services Creighton did supply, Argenyi's medical school experience, although

"uncomfortable or difficult," was not "beyond [his] capacity." Since Argenyi had not

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been "effectively excluded" from Creighton, his requested additional aids and

services were not "necessary" under the ADA. Overlooking Argenyi's evidence

which showed that aspects of his medical education at Creighton were beyond his

capacity without the accommodations he requested, the court failed to make the

appropriate comparison with the golfer with the degenerative disorder in Martin.

The Martin Court indicated that its ruling was narrow and most significantly,

it stated that it was not deciding the definition of "necessary" in the context of the

ADA, since the PGA Tour had conceded that Martin's requested modification was

both "reasonable" and "necessary." 532 U.S. at 683 n.38. The "narrow dispute"

before the Court was "whether allowing Martin to use a golf cart, despite the walking

requirement that applies to the PGA Tour . . . is a modification that would

'fundamentally alter the nature'" of the golf tournament. Id. at 682. That argument

had been undermined by the district court'sfinding that "the fatigue [for other golfers]

from walking during one of [its] tournaments cannot be deemed significant." Id. at

687. Here, there is no allegation that Argenyi isseeking any "competitive advantage"

over other medical students. See id. at 670–71.

2

To the extent that the district court interpreted Martin to mean that the word

"necessary" in the ADA requires a showing that the claimant has been effectively

excluded from a place of public accommodation, it would be inconsistent with the

congressional purpose of the ADA and the Rehabilitation Act. In Title III of the

ADA and § 504 of the Rehabilitation Act, Congress required public accommodations

Amicus the United States Department of Justice similarly argues that 2

navigating the golf course in Martin "is far different from a person's ability to

understand what isspoken in classroomor clinical instruction in medicalschool," and

that "[n]othing suggests that the Court's comments about a professional athlete's

fatigue and discomfort during competition apply to individuals with hearing

impairments seeking auxiliary aids and services to ensure effective communication

in an academic setting."

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and entities which receive public funding to furnish reasonable auxiliary aids and

services so that all individuals have an equal opportunity to gain "a like" or "equal"

benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely

ensure that Argenyi is not "effectively excluded" from its medical school, the ADA

and the Rehabilitation Act require Creighton to "start by considering how [its

educational programs] are used by non-disabled [medical school students] and then

take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685

F.3d at 1135.

We conclude that the evidence produced in this case created a genuine issue

of material fact as to whether Creighton denied Argenyi an equal opportunity to gain

the same benefit from medical school as his nondisabled peers by refusing to provide

his requested accommodations. At thisstage the record supports Argenyi's claimthat

he was unable to follow lectures and classroomdialogue orsuccessfully communicate

with clinical patients. From such evidence a reasonable factfinder could determine

that Argenyi was denied an opportunity to benefit from medical school equal to that

of his nondisabled classmates. The district court's grant of summary judgment to

Creighton should therefore be reversed and the case remanded.3

III.

Creighton has cross appealed, contending that the district court erred by

denying its request for costs without providing a rationale for doing so. See Fed. R.

Civ. P. 54(d)(1). We need not consider that argument because at thisstage Creighton

has not qualified as a prevailing party and therefore is not entitled to cost recovery. 

On remand Creighton may also submit evidence of the cost of Argenyi's 3

requested auxiliary aids and services for a determination of whether providing them

would impose an undue burden on the university. See 42 U.S.C.

§ 12182(b)(2)(A)(iii) (ADA); 29 U.S.C. § 794a(a)(1) (Rehabilitation Act).

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See Pottgen v. Mo. State High Sch. Activities Ass'n, 103 F.3d 720, 723–24 (8th Cir.

1997).

IV.

Accordingly, we reverse the summary judgment granted to Creighton and

remand for further proceedings consistent with this opinion.

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