John Toma v. University of Hawaii ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN TOMA, No. 18-16523
Plaintiff-Appellant, D.C. No. 1:16-cv-00499-RLP
v.
MEMORANDUM*
UNIVERSITY OF HAWAII,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Richard L. Puglisi, Magistrate Judge, Presiding
Submitted October 23, 2019**
University of Hawaii Manoa
Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.
Plaintiff-Appellant John Toma alleged that he was discriminated against on
the basis of his disability when he was dismissed from Defendant-Appellant
University of Hawaii’s (the University) medical school, in violation of the
Americans with Disabilities Act and the Rehabilitation Act. 29 U.S.C. § 794; 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Panel
U.S.C. § 12132. We assume, without deciding, that Toma’s depression qualified
as a disability under both statutes.
The district court granted summary judgment for the University, ruling that
Toma could not make out a prima facie claim of discrimination under either
statute. Because of his checkered academic career, Toma could not show that he
was otherwise qualified to remain at the school or that his dismissal was solely due
to his disability. See Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816–17 (9th
Cir. 1999); Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045–46 (9th Cir.
1999). Even considering Toma’s allegedly waived arguments and allegedly
erroneously excluded evidence, we agree. The facts undisputed by the parties
show that Toma was not an otherwise qualified student and that the University did
not dismiss him solely because of his disability.
AFFIRMED.
Panel 2