United States District Court, D. Maryland
MEMORANDUM OPINION
Beth
P. Gesner Chief United States Magistrate Judge.
Plaintiff
Shane Mallon (“Mallon, ” or
“plaintiff”) brings this action against
defendants Frostburg State University (“FSU”) and
the State of Maryland d/b/a Frostburg State University
(collectively, “defendants”) alleging that
defendants discriminated against him on the basis of his
disability in violation of the Americans with Disabilities
Act and the Rehabilitation Act of 1973. (ECF No. 2 at 11-16).
Currently pending before the court are: (1) Defendants
Frostburg State University and the State of Maryland's
Motion to Dismiss or, in the Alternative, for Summary
Judgment (“defendants' Motion”) (ECF No. 18);
(2) Plaintiff's Response in Opposition to Defendants
Frostburg State University and the State of Maryland's
Motion to Dismiss or, in the Alternative, for Summary
Judgment and Request for Hearing (“plaintiff's
Opposition”) (ECF No. 22); and (3) Reply of Defendants
in Further Support of Their Motion to Dismiss or, in the
Alternative, for Summary Judgment (“defendants'
Reply”) (ECF No. 23). A motions hearing was held on
August 5, 2019. (ECF No. 26). Prior to the hearing,
defendants filed a Supplemental Brief. (ECF No. 25). After
the hearing, plaintiff filed an unsworn affidavit. (ECF No.
29). For the reasons stated below, defendants' Motion
(ECF No. 18) is denied.
I.
STANDARD OF REVIEW
The
purpose of a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) is to test the
legal sufficiency of a complaint. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). When
ruling on such a motion, the court must “accept[] all
well-pleaded allegations in the plaintiff's complaint as
true” and “draw[] all reasonable factual
inferences from those facts in the plaintiff's
favor.” Id. at 244. Nonetheless, “[t]he
mere recital of elements of a cause of action, supported only
by conclusory statements, is not sufficient to survive a
motion made pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Rather, “a complaint must contain sufficient factual
matter . . . to state a claim to relief that is plausible on
its face.” Ashcroft, 556 U.S. at 678 (internal
citation and quotation marks omitted). A plaintiff satisfies
this standard not by forecasting evidence sufficient to prove
the elements of the claim, but by alleging sufficient facts
to establish those elements. Walters, 684 F.3d at
439. Accordingly, “while a plaintiff does not need to
demonstrate in a complaint that the right to relief is
‘probable,' the complaint must advance the
plaintiff's claim ‘across the line from conceivable
to plausible.'” Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Here,
however, defendants filed a “Motion to Dismiss or, in
the Alternative, for Summary Judgment” (ECF No. 18),
and both parties attached supporting exhibits to their
filings. “[W]hen matters outside the pleading are
presented to and not excluded by the court, the [12(b)(6)]
motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56.” Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998) (quoting Fed.R.Civ.P. 12(b)) (internal quotation
marks omitted) (alteration in the original). Here, because
the court will consider matters outside of the pleading,
defendants' Motion will be construed as a motion for
summary judgment.
Summary
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute remains “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is properly considered
“material” only if it might affect the outcome of
the case under the governing law. Id. The party
moving for summary judgment has the burden of demonstrating
the absence of any genuine issue of material fact.
Fed.R.Civ.P. 56(a); Pulliam Inv. Co., Inc. v. Cameo
Props., 810 F.2d 1282, 1286 (4th Cir. 1987). On those
issues for which the nonmoving party will have the burden of
proof, however, it is his or her responsibility to oppose the
motion for summary judgment with affidavits or other
admissible evidence specified in Federal Rule of Civil
Procedure 56. Fed.R.Civ.P. 56(c); Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993). If a party
fails to make a showing sufficient to establish the existence
of an essential element on which that party will bear the
burden of proof at trial, summary judgment is proper.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
When
reviewing a motion for summary judgment, the court does not
evaluate whether the evidence favors the moving or nonmoving
party, but considers whether a fair-minded jury could return
a verdict for the nonmoving party on the evidence presented.
Anderson, 477 U.S. at 252. In undertaking this
inquiry, the court views all facts and makes all reasonable
inferences in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The nonmoving party,
however, may not rest on its pleadings, but must show that
specific, material facts exist to create a genuine, triable
issue. Celotex, 477 U.S. at 324. A
“scintilla” of evidence in favor of the nonmoving
party, however, is insufficient to prevent an award of
summary judgment. Anderson, 477 U.S. at 252.
Further, “mere speculation” by the nonmoving
party or the “building of one inference upon
another” cannot create a genuine issue of material
fact. Cox v. Cty. of Prince William, 249 F.3d 295,
299-300 (4th Cir. 2001). Summary judgment should be denied
only where a court concludes that a reasonable jury could
find in favor of the nonmoving party. Anderson, 477
U.S. at 252.
II.
BACKGROUND
In
2017, plaintiff enrolled as a student at FSU for the fall
semester. (ECF No. 22-2 at 3). That fall, however, plaintiff
received a warning that he had not complied with FSU's
immunization policy and that his student account could be put
on hold. (ECF No. 18-1 at 3). FSU's immunization policy
“requires all students to be immunized or show proof of
immunity for measles, rubella, diphtheria, tetanus and mumps,
and have documentation of such immunity on file with the
Brady Health Center (which is [FSU's] medical
center).” (Id.) On October 24, 2017, plaintiff
met with Darlene Smith, the Nurse Practitioner and Director
of the Brady Health Center, regarding this issue.
(Id.) Plaintiff stated that he had been diagnosed
with a medical condition, rheumatoid arthritis, that he takes
immunosuppressive medications to treat this condition, and
that he therefore cannot receive vaccinations. (ECF No. 22-2
at 2, 4). In response, Ms. Smith stated that he could comply
with the immunization policy by (1) obtaining his childhood
vaccination records; (2) taking a measles, mumps, and rubella
(“MMR”) antibody titer's blood test “to
see if his childhood vaccines still provided him with
immunity;” or (3) signing a religious exemption waiver
“acknowledging that he would be identified as at risk
for illness in the event of an outbreak on campus and be
required to stay away from campus.” (ECF No. 18-1 at
2-3). Plaintiff advised that he was previously vaccinated as
a child in Ireland, but that he had no way to obtain his
immunization records. (Id. at 3). He also stated
that he received a tetanus vaccine in Baltimore in 2011.
(Id. at 4). Ms. Smith informed plaintiff that he
could complete a form to have his tetanus shot record sent to
the Brady Health Center, but plaintiff declined.
(Id.) Plaintiff also declined to take an MMR blood
test or sign a waiver at that time. (Id.) Ms. Smith
did, however, temporarily lift the hold on plaintiff's
account to allow plaintiff to register for classes for the
winter and spring semesters. (ECF No. 22-2 at 4).
In the
spring of 2018, plaintiff had two holds on his account that
prevented him from registering for classes for the summer and
fall semesters. (Id.) The first hold was a financial
hold. (Id.) On December 19, 2017, plaintiff took out
a temporary, emergency student loan for $1, 000 and,
according to FSU's standard policy, a hold was placed on
plaintiff's account pending repayment of the loan, which
was due on February 28, 2018. (ECF No. 18-1 at 4). Although
plaintiff did not repay the loan by February 28, 2018, the
hold was temporarily lifted to allow plaintiff to register
for classes, and permanently removed on August 21, 2018, when
plaintiff repaid the loan. (Id.) The second hold,
from the Brady Health Center, resulted from plaintiff's
noncompliance with FSU's immunization policy, as
plaintiff had not taken an MMR antibody titer's blood
test, signed an exemption form, or provided his vaccination
records. (Id.) Plaintiff received an email from the
Brady Health Center on February 12, 2018, warning him that
the hold would go into effect the following week if he did
not comply with the immunization policy, as well as a
reminder email on February 27, 2018. (ECF No. 23 at 4-5).
Plaintiff received another email on March 15, 2018, warning
him that he would be blocked from registering for classes
after spring break if he did not comply with the immunization
policy. (Id. at 5). Plaintiff failed to do so, and
the Brady Health Center hold was placed back onto
plaintiff's account on March 28, 2018, which prevented
him from registering for classes for the fall semester.
(Id. at 5-6).
On
March 30, 2018, plaintiff was emailed by Jeff Graham,
FSU's Assistant Vice President of Student Affairs, and
notified of the hold on his account. (ECF No. 22-2 at 6). On
April 2, 2018, Tom Bowling, FSU's Vice President of
Student Affairs, who was copied on the March 30 email,
responded to the email and asked plaintiff to come by his
office that afternoon. (Id.) Plaintiff met with Mr.
Bowling, but they were unable to resolve the issue.
(Id.) Plaintiff alleges that Mr. Bowling told him to
“get a lawyer.” (Id.) Plaintiff then met
with FSU's general counsel, Bradford Nixon, who informed
plaintiff that he could sign a religious exemption waiver as
an alternative to documenting his immunizations. (ECF No.
18-1 at 5). Plaintiff declined and stated that signing a
religious waiver would compromise his principles.
(Id.) FSU also offered plaintiff the option of
signing a newly created waiver[1] “for reasons of conscience,
” but plaintiff declined again, informing Mr. Bowling
that his attorney had instructed him not to sign anything.
(Id.) Plaintiff also alleges that Mr. Nixon advised
plaintiff to have his doctor send a medical waiver to the
school and told plaintiff that “this issue is worth
fighting for but it will be tough because [p]laintiff will be
going up against the State of Maryland.” (ECF No. 22-2
at 7).
After
speaking with Mr. Bowling and Mr. Nixon, plaintiff met with
Ms. Smith again and asked her to lift the hold on his student
account so that he could register for classes. (ECF No. 18-1
at 5). He offered to take online only classes during the fall
semester and stated that he would transfer after that
semester. (ECF No. 22-2 at 8). He also asked Ms. Smith to
release his transcripts so that he could apply to transfer
out of FSU. (Id.) Ms. Smith declined to do so and
did not lift the hold on plaintiff's account.
(Id.) Finally, after his meeting with Ms. Smith,
plaintiff met with Beth Hoffman, FSU's American with
Disability Act/Equal Employment Opportunity and Immigration
Compliance Coordinator. (Id. at 8-9). Plaintiff
alleges that Ms. Hoffman also told him to have his doctor
send a medical waiver. (Id. at 9).
After
plaintiff met with these individuals, on April 6, 2018,
plaintiff's doctor, John Miller, M.D., faxed FSU a letter
that stated “I have had the pleasure of taking care of
Mr. Mallon since March 2018, but his autoimmune condition has
required treatment for several years. Due to his
immunocompromised state, Mr. Mallon is not eligible to
receive live vaccinations, such as the MMR vaccination.
Please do not hesitate to contact me if you have any
questions or concerns.” (ECF No. 22-2 at 9). Ms. Smith
reviewed this letter and noted that it did not address
plaintiff's 2011 tetanus vaccination or his eligibility
for non-live vaccinations, such as tetanus and diphtheria.
(ECF No. 18-1 at 5). Ms. Smith then contacted Dr.
Miller's office and asked whether plaintiff could take a
MMR antibody titer's blood test. (Id.) She was
told that they would contact plaintiff about the test.
(Id.) Ms. Smith also faxed Dr. Miller a letter
noting that plaintiff “was advised that he needs to
provide laboratory proof of immunity to measles, mumps and
rubella since he cannot produce his childhood vaccination
records.” (ECF No. 23-3 at 22). Ms. Smith further noted
that, even with Dr. Miller's letter advising a medical
contraindication to the MMR vaccine, plaintiff would still be
considered susceptible in the event of an outbreak on campus.
(Id.) If plaintiff took the MMR antibody titer's
test, however, the test would show if he previously received
a MMR vaccine. (Id.) Finally, Ms. Smith informed Dr.
Miller that “[u]niversity immunization policy also
requires an updated Td/Tdap every 10 years if that can be
administered to [plaintiff].” (Id.)
On
April 9, 2018, plaintiff emailed Ms. Hoffman and asked again
about lifting the hold so that he could register for two
online classes. (ECF No. 22-2 at 10). On April 10, 2018, Ms.
Hoffman responded that she had sent his doctor's letter
to the Brady Health Center and left an email and phone
message requesting that the hold be lifted. (Id.)
That same day, plaintiff met with FSU's President, Ronald
Nowaczyk, for “a couple minutes, ” and plaintiff
alleged that President Nowaczyk stated that he would be fine
if he got the note from his doctor. (Id.) A day or
two later, plaintiff called Ms. Hoffman again to inquire why
the hold had not been lifted. (Id.) Ms. Hoffman
informed plaintiff that the Brady Health Center would not
lift the hold. (Id. at 10- 11). On April 16, 2018,
plaintiff emailed Ms. Smith, Mr. Bowling, and Ms. Hoffman,
asking again for permission to take two online classes and
then transfer as well as access to his transcripts.
(Id. at 11). The hold was not lifted, however, and
plaintiff was not able to register for classes for the summer
or fall semester. (Id.)
There
is no evidence in the record of any further communication
between plaintiff and defendants until July 27, 2018, when
plaintiff filed a disability discrimination complaint against
FSU with the Maryland Higher Education Commission
(“MHEC”) and requested to take online classes.
(Id. at 11-12). In response, FSU stated that its
position was that FSU offered plaintiff multiple
opportunities to correct his noncompliance with FSU's
immunization policy, but that plaintiff failed to do so. (ECF
No. 22-5 at 28). The next communication between the parties
in the record takes place on or about November 3, 2018, when
plaintiff emailed his academic supervisor, Kenneth Levitt, to
inquire about his status as a student and registering for
classes for the winter semester. (ECF No. 22-2 at 12). Mr.
Levitt stated that he was no longer listed as plaintiff's
advisor and copied Tamera Shockey, an employee at the
Advising Center for the College of Business (ECF No. 23-2 at
16), to assist plaintiff. (ECF No. 22-2 at 13). On or about
November 8, 2018, plaintiff received a letter from FSU
stating that he was readmitted as a student for the winter
semester. (Id.; ECF No. 22-6 at 19). That same day,
he received an email from Ms. Shockey stating that the Office
of Admissions was processing his request to register for
classes. (ECF Nos. 22-2 at 13, 22-6 at 21). By this time,
however, plaintiff had enrolled as a student at the Community
College of Baltimore County for the winter semester. (ECF No.
22-2 at 13).
On or
about November 20, 2018, the Philadelphia Office of Civil
Rights (“OCR”) informed plaintiff that it was
investigating plaintiff's MHEC complaint. (Id.
at 14). On February 15, 2019, plaintiff mailed his notice of
claim to the state of Maryland pursuant to the Maryland Tort
Claims Act. (Id. at 15). On March 6, 2019, plaintiff
engaged in mediation through the OCR, but this mediation was
unsuccessful. (Id.) Plaintiff filed the instant
complaint on March 15, 2019 (ECF No. 1), and an Amended
Complaint on March 16, 2019 (ECF No. 2), alleging that
defendants discriminated against him on the basis of his
disability in violation of Title II[2] of the Americans with
Disabilities Act, 42 U.S.C. § 12132 (“Title
II” or the “ADA”) and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794
(“Section 504”). Specifically, plaintiff brought
one claim alleging intentional disability discrimination in
violation of the ADA, one claim alleging that defendants
failed to accommodate his disability in violation of the ADA,
one claim alleging intentional disability discrimination in
violation of Section 504, and one claim alleging that
defendants failed to accommodate his disability in violation
of Section 504. (ECF No. 2 at 11-15). On April 18, 2019,
defendants moved to dismiss the complaint or, in the
alternative, for summary judgment, arguing that
plaintiff's four counts all fail as a matter of law. (ECF
No. 18-1 at 7).
III.
DISCUSSION
Plaintiff
alleges that defendants discriminated against him on the
basis of his disability in violation of Title II of the ADA
and Section 504 of the Rehabilitation Act. (ECF No. 2 at 11-
15). Specifically, plaintiff alleges that defendants violated
Title II and Section 504 by refusing to permit him to
continue his education at FSU and refusing to release
plaintiff's academic transcripts to ...