Malakoff v. Alton Ochsner Med Fd

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30836
(Summary Calendar)
MARY L. MALAKOFF,
Plaintiff-Appellant,
versus
ALTON OCHSNER MEDICAL FOUNDATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(99:-CV-3603-I)
April 16, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Mary L. Malakoff (“Malakoff”) appeals the district court’s grant of summary judgment on
her claim against Alton Ochsner Medical Foundation (“Ochsner”) under the Rehabilitation Act of
1973 (“the Rehabilitation Act”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 1998, Ochsner appointed Malakoff to be an intern to continue her study of

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psychiatry. In December 1998, Ochsner terminated Malakoff’s internship because of her poor
performance.
Malakoff then sued Ochsner, claiming that she had performed unsatisfactorily because of a
hearing disability and that Ochsner had failed to grant her requests for accommodations. Malakoff
asserted claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the
Louisiana Employment Discrimination Law. She also asserted breach of contract and intentional
infliction of emotional distress claims.
Ochsner moved to dismiss Malakoff’s discrimination claims, arguing that she had failed to
exhaust administrative remedies and to timely file her ADA claims with the Equal Employment
Opportunity Commission. Ochsner also sought dismissal of the breach of contract and emotional
distress claims. Ochsner brought its motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and,
alternatively, under Fed. R. Civ. P. 56.
The district court grant ed Ochsner’s alternative motion for summary judgment as to all of
Malakoff’s claims. Regarding the Rehabilitation Act claim, the only claim relevant to this appeal, the
district court found that because Malakoff failed to exhaust her administrative remedies, her claim
was barred. Malakoff now appeals the district court’s ruling with respect to her Rehabilitation Act
claim.
DISCUSSION
Malakoff presents as the sole issue for review “whether a disabled participant in a private
institution’s program or activity receiving federal financial assistance must first exhaust her
administrative remedies” under the Rehabilitation Act. She argues, in this appeal, that she was not
required to exhaust administrative remedies before bringing her claim. However, she did not raise

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1Even if Malakoff had preserved this issue, her arguments are without merit because we have
held that a plaintiff must exhaust her administrative remedies before bringing a claim under section
504 of the Rehabilitation Act, 29 U.S.C. 794. See Prewitt v. United States Postal Serv., 662 F.2d
292, 303-04 (5th Cir. 1981) (“read[ing] the exhaustion of administrative remedies requirement of
section 501 [of the Rehabilitation Act] into the private remedy recognized by both section 501 and
section 504 for federal government handicap discrimination”).
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this issue before the district court. In fact, in her memorandum in opposition to Ochsner’s motion
to dismiss, Malakoff instead argued that she had exhausted the administrative remedies offered by the
Accreditation Council for Graduate Medical Education, which governs Ochsner. She further argued
that the administrative procedures that Ochsner claimed that she should have followed “would be
both time consuming and non-productive.”
Generally, we do not consider issues raised for the first time on appeal. See Texas v. United
States, 730 F.2d 339, 358 n.35 (5th Cir. 1984). “The decision whether to apply the general rule is,
however, within our discretion, and it is a matter to be determined on a case-by-case basis.” Id. We
have stated that we will not consider issues raised for the first time on appeal “unless the issue can
be resolved as a matter of law and unless failure to do so would result in grave injustice.” Hogue v.
United Olympic Life Ins. Co., 39 F.3d 98, 102 (5th Cir. 1995).
We do not find that this is an appropriate case in which to depart from the general rule
because Malakoff had ample opportunity to argue to the district court that she was not required by
law to exhaust her administrative remedies under the Rehabilitation Act but chose instead to argue
that she had exhausted some administrative remedies.1 Thus, although the issue is purely legal, it
cannot be said that “grave injustice” will result if we do not consider it. Therefore, because Malakoff
failed to argue t o the district court that she was not legally required to exhaust her administrative
remedies under the Rehabilitation Act, the issue was not properly preserved. Accordingly, we will

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not consider her appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment on
Malakoff’s Rehabilitation Act claim.
AFFIRMED.

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