UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30328 Summary Calendar

SCOTT RINEHART JONES

Plaintiff-Appellant,

versus

AMERICAN COUNCIL ON EDUCATION

Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Louisiana (98-CV-592-C-M2) September 21, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This appeal concerns the district court’s dismissal of

the plaintiff’s complaint under Federal Rule of Civil Procedure

12(b)(6). Because the court relied improperly on factual

inferences, we reverse the order and remand for further

proceedings.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except for the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND

Appellant Scott Rinehart Jones (“Jones”) filed suit

against the American Council on Education (“ACE”) alleging that ACE

violated the Americans with Disabilities Act,

,

when ACE, the developer of and administrator in Louisiana of the

Tests of General Educational Development (the “GED”), denied

Jones’s request to modify questions on the GED to simple, direct

questions. Claiming to suffer from various learning disabilities,

Jones requested from ACE certain accommodations in taking the GED.

Specifically, he requested that ACE give him extra time, give him

a private examination room, allow him to use a calculator, and

modify the test so that it contained only simple, direct questions

without multiple parts. ACE allowed all the requested

accommodations except the last.

In the district court’s dismissal of Jones’s suit, the

court held that Jones’s request for accommodation was ureasonable

and thus not an accommodation permitted by the ADA. In finding

Jones’s request unreasonable, the court concluded that the request

imposed an unreasonable financial and administrative burden and

would alter the nature of the test.

DISCUSSION

“We review a Rule 12(b)(6) dismissal de novo.” Cinel v.

Connick,

(5th Cir. 1994). A complaint should

not be dismissed under Rule 12(b)(6) unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. See Conley v. Gibson, 355

, 45-46,

,

(1957); Lowrey v.

Texas A&M Univ. Sys.,

, 247 (5th Cir. 1997).

Although much of the district court’s reasoning makes

intuitive sense, the court based its decision on what are

essentially factual assumptions, such as the impact on norming of

test results created by changing the question format and even the

basic content of the GED exam. Factual inferences may be drawn

upon a motion for summary judgment after admissible evidence has

been introduced, but not upon a motion to dismiss on the pleadings

for failure to state a claim. While it may be doubtful that the

appellant will prevail on the merits, the pleadings adequately

stated a claim upon which relief could be granted.

We therefore REVERSE the district court’s order and

REMAND the case for further proceedings.

REVERSED and REMANDED.

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