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United States Court of Appeals, Ninth Circuit.

John TOMA, Plaintiff-Appellant, v. UNIVERSITY OF HAWAII, Defendant-Appellee.

No. 18-16523

Decided: October 30, 2019

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges. Brian Keith Mackintosh, Attorney, Law Office of B. Mackintosh, Honolulu, HI, for Plaintiff-Appellant Derek T. Mayeshiro, Esquire, Associate General Counsel, University of Hawaii, Office of VP for Legal Affairs and University General Counsel, Honolulu, HI, for Defendant-Appellee


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 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.


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