Mallon v. Frostburg State University

          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 ...