Opinion
CV 01-0958 (DRH) (ETB)
August 29, 2003
DANIEL SPYCHALSKY, Carle Place, New York, for Plaintiff Pro Se
Jill L. Rosenberg, Esq., Lisa Swanson, Esq., ORRICK, HERRINGTON SUTCLIFFE LLP, New York, New York, for Defendants
MEMORANDUM ORDER
Plaintiff initiated an action for failure to accommodate under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act and various state-law causes of action. Subsequently, Defendants submitted a summary judgment motion, pursuant to Fed.R.Civ.P. 56. For the reasons discussed infra, the Court grants the motion.
I. BACKGROUND
In evaluating a summary judgment motion the Court "is required to draw all factual inferences in favor of, and take all factual assertions in the light most favorable to, the party opposing summary judgment."Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). Since the summary judgment motion was initiated by Defendants, the Court interprets the proffered undisputed facts in the light most favorable to Plaintiffs. The Court culled the following facts from the evidence identified in the parties' Local Civil Rule 56.1 statements of undisputed facts.
On February 16, 1990, Plaintiff, then in eleventh grade, underwent a psychological evaluation by the Carle Place Union Free School District.See Plaintiffs Ex. A at 1. This evaluation was prompted by Plaintiffs failure of a writing test and demonstrated difficulty with writing. Id. The resultant report noted that Plaintiffs
current overall level of intellectual functioning is within the high average range, with verbal abilities at the lower-most limit of the superior range, and non-verbal abilities approaching the lower-most limit of the high average range. . . . Considering some isolated levels of superiority, and considering the relative lack of concentrated effort, it is suggested that [Plaintiff] is a young man of superior intellectual potential. [Plaintiff] demonstrated a superior vocabulary and a superior grasp of social judgment and social rules. His fund of general information and his high capacity to think abstractly and conceptually are at least high average. [Plaintiff] also seems to possess a high average capacity to manipulate numbers and mathematical formulas [sic].Id. at 2.
The report went on to note that Plaintiff only managed "borderline achievement on the Digit Span subtest," a test that measures "passive auditory attention," "short term memory" and "mental visual tracking."Id. While,
[t]his [borderline achievement] may reflect the impact of lack of effort on tasks that [Plaintiff] deems elementary; it may also reflect genuine deficiency in attention skills. The fact that [Plaintiff] did so well on the Arithmetic subtest, also a task of auditory attention and concentration, suggests that [P]laintiff's capacity to concentrate is not particularly impaired. However, it must be noted that Daniel needed many Arithmetic items read to him more than once; and, therefore, he may have genuine difficulty with his auditory attention; and may have been able to perform exceedingly well on many verbal tasks due to an application of effort, a usage of context, and a rich store of information.Id.
The report went on to note that
[w]hereas his word recognition and reading comprehension appear to be somewhat above grade level, . . . his written spelling was tested to be at an eighth grade level; and his written arithmetic at a seventh grade level. His spelling seemed to perhaps reflect deficiency in learned information. It may be speculated that [Plaintiff] was unable or unwilling to. exert the necessary effort in earlier years, and now displays gaps in his knowledge base. . . . His written arithmetic displayed some carelessness and inattention. . . . [Plaintiff] seemed to have some difficulty with fractions; and he showed inconsistency in his application of the basic rules of addition, multiplication, subtraction and long division.Id. at 3.
Based upon this report, the Carle Place Union Free School District classified Plaintiff as "speech impaired." Id. at 4. In accommodation of this impairment, Plaintiff was allowed to take tests under an extended amount of time, take the test in a smaller group at a different location, have the questions read to him, and have his "answers recorded in any manner." Id. There is no evidence of any further accommodations. Furthermore, Plaintiff did not request any accommodations when he took the Scholastic Aptitude Test ("SAT").
Plaintiff maintains that the report classified him as "learning disabled." See Plaintiffs Rule 56.1(b) Statement ¶ 2. However, that phrase appears nowhere in the Carle Place report.
Since "disability" or "disabled" is a term of art in the context of this case, the Court will refer generally to Plaintiffs "impairment" or "impairments."
After graduating from Carle Place High School, Plaintiff attended Curry College for one year. While at Curry College, Plaintiff was enrolled in the Program for Advancement of Learning, "a structured support program for students with specific learning disabilities." See Plaintiffs Ex. F. Besides individualized support in their specific areas of impairment, students enrolled in that program "also receive[d] accommodations such as untimed testing accommodations and [the] use of books on tape." Id. Plaintiff availed himself of these specific accommodations while at Curry College. Id. After one year, however, Plaintiff transferred to Boston College.
At Boston College, Plaintiff requested no accommodations for any learning impairment. Plaintiff graduated from Boston College in 1995. Plaintiff took the Law School Admission Test ("LSAT") in December 1995. As with the SAT, Plaintiff requested no accommodation for any impairment prior to taking the LSAT. Plaintiff applied for admission to Defendant St. John's University School of Law ("St. John's") in February 1996. One of the requirements for graduation from St. John's was completion of a course in Federal Personal Income Taxation ("Tax class" or "Tax course"). Plaintiff maintains that he was not aware of this requirement.
Plaintiff enrolled at St. John's in August 1997. In October 1997, Plaintiff submitted a request for certain testing accommodations based upon his learning impairment. In connection with this request, Plaintiff submitted portions of the 1990 Carle Place report, a document from Curry College indicating that Plaintiff had a "speech language impairment," Defendants' Ex. C at 5, and an "Application for Service" to the "Recording for the Blind," id. at 6-7. The "application for service," indicated without elaboration that Plaintiffs "reading speed," "spelling," "proofreading" and "writing" were "all impaired."Id. at 7. Based upon St. John's published standards, this documentation was insufficient. See Defendants' Ex. D at 131-132. Therefore, Defendant Dean Katherine Sullivan ("Sullivan") arranged to have Plaintiff tested by the St. John's University Counseling Center.
Plaintiff was administered two batteries of tests by the school psychologist over three sessions in November 1997. Plaintiff and the school psychologist met an additional time to discuss the results of those tests. On December 1, 1997, the school psychologist issued a report based upon these tests. The summary and recommendations section of this report stated:
[Plaintiff] is a 24 year old first year law student who has been previously classified and serviced as a Learning Disabled/Speech Impaired student. Although possessing intellectual ability in the superior range at the 91st percentile, [Plaintiff] exhibits a severe weakness in the area of spelling, falling in the Borderline Deficit range at the 6th percentile. This weakness may be attributed to previous deficits in sequencing and auditory processing abilities which at this time prove to be areas of relative weakness. [Plaintiff] displays ability-achievement as well as intra-cognitive discrepancies, both indicative of a learning disability. In light these findings, the following recommendations are made so that [Plaintiff]'s deficient spelling skills do not keep him from achieving up to his potential as a law student:
1. Spelling errors should not negatively impact upon [Plaintiff]'s written exams. This can be accomplished with one of several alternatives:
a. Professors should be notified ahead of time that they should not consider spelling errors when determining [P]laintiff's grades[;]
b. [Plaintiff] could type his exam answers on a computer utilizing a spell check feature. . . . [and]
c. [Plaintiff] could dictate his answers into a tape recorder or dictate them to a scribe who would write them out for him.
Defendants' Ex. I at 117. (The Court notes that there is no recommendation numbered "2.") After discussing the report with the school psychologist, Sullivan decided to notify Plaintiffs professors, in accordance with suggestion "a." Plaintiff took his first year exams with this specific accommodation.
In October 1998, Plaintiff requested use of a computer and "time-and-a-half for his upcoming exams. This request was granted.See Second Amended Complaint ¶ 12; see also Plaintiffs Ex. E, Q. Plaintiff continued to use these accommodations for the remainder of his time at St. John's.
On October 23, 2000, the registrar at St. John's sent Plaintiff a memorandum indicating that Plaintiff had not fulfilled the graduation requirement of passing a Tax class. See Defendants' Ex. J. On December 4, 2000, Plaintiff sought a waiver of this requirement. The basis for this request was that Plaintiffs learning impairments "significantly affect This I ability to manipulate numbers," which Plaintiff regarded as a requirement for success in Tax class. See Defendants' Ex. L. Plaintiff cited his math test scores from his consultation with the school psychologist: 30th percentile in "Broad Math Ability" and 18th percentile in "Calculation Ability."Id. Plaintiff also requested this waiver because the class was not on the bar exam. Id. This request was mailed to both Sullivan and Defendant Dean Daniel Furlong ("Furlong").
On December 5, 2000, Sullivan informed Plaintiff that the Tax class, as a part of the core curriculum, probably could not be waived. However, Sullivan referred the request to Furlong for further consideration. In response to this request, and the subsequent referral, Furlong reviewed Plaintiffs St. John's transcript, the Tax syllabus, prior Tax examinations, the school psychologist's report and consulted the faculty members that taught Tax. Moreover, Furlong forwarded the syllabus and examination to Dr. W. David Harmon, the Director of the St. John's University Counseling Center, for his review. Upon review of these materials. Dr. Harmon concluded that the allowance of extra time on the exam and the use of a calculator were sufficient accommodations for Plaintiffs impairments. In Dr. Harmon's opinion, waiver of the course was not necessary. Based upon Dr. Harmon's conclusions, Furlong denied Plaintiffs request to waive the core requirement of passing a Tax class.
On January 19, 2001, Plaintiff appealed Furlong's decision to Defendant Dean Joseph Bellacosa ("Bellacosa"). After reviewing the request, consulting with the faculty and considering the documents in Plaintiffs academic file, Bellacosa denied the appeal. On January 25, 2001, Plaintiff renewed his appeal. On January 29, 2001, Bellacosa again denied the appeal.
Plaintiff initiated this action on March 7, 2001, while attending the Tax course. During the May 2001 Tax examination, Plaintiff, along with other students in the class, did not receive a supplemental handout that related to the final exam. The Tax professor was informed of the oversight and took that oversight into account when grading the exam. Plaintiff completed the Tax course and received a C+ grade. Plaintiff does not contend that his grade was lower due to the oversight. During his career at St. John's, Plaintiff received grades of C+ or lower in nine of twenty-nine courses. Plaintiff graduated from St. John's on June 3, 2001.
After the initial complaint, Plaintiff twice amended the complaint. The current Second Amended Complaint alleges that Defendants: (1) denied meaningful participation in the law school in violation of 42 U.S.C. § 12131, Title II, Subtitle A of the ADA, see Second Amended Complaint ¶¶ 6, 13, 18; (2) denied Plaintiff meaningful participation in the law school and retaliated against Plaintiff in violation of 29 U.S.C. § 794, the "Rehabilitation Act," see id. ¶¶ 22 and 24; (3) retaliated against Plaintiff in violation of unspecified sections of Title II, Subtitle A of the ADA, see id. ¶¶ 22, 24; (4) failed to make reasonable accommodations to Plaintiffs disability and created a hostile learning environment in violation of 42 U.S.C. § 12182(b)(2)(A)(ii), see id. ¶¶ 7, 14, 19; (5) violated Plaintiffs Fifth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983, see id. ¶¶ 8, 9, 15, 20; (6) violated a contract with Plaintiff by failing to abide by the ADA,see id. ¶¶ 10, 16, 23; (7) fraudulently misrepresented certain facts, see id. ¶¶ 11, 21 and (8) fraudulently induced Plaintiff to attend St. John's,see id. ¶ 25. On March 27, 2003, Defendants' instant motion for summary judgment was fully briefed for the Court's review.
II DISCUSSION
A. Summary Judgment Standard.
It is axiomatic that summary judgment may not be granted unless "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c);see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 H986). The burden to show that no genuine issue of material fact exists lies with the moving party. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). An issue of material fact is genuine "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).
However, genuine issues of fact are not created by conclusory allegations. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). Rather, summary judgment is proper when, after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party.See Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-588 (1986).
B. Title II, Subtitle A of the ADA.
On its face, Plaintiffs Title II cause of action against St. John's fails to state a claim on which relief may be granted. "Title II, subtitle A of the ADA prohibits discrimination by public entities." Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 78 (2d Cir. 2000). St. John's is indisputably a division of a private catholic university. Plaintiff has failed to articulate a convincing reason why St. John's should be considered as a public entity.
The Court notes that the definition of a "public entity" differs slightly from that of a "state actor." Accordingly, the Court will address St. John's status as a "state actor" while discussing Plaintiffs 42 U.S.C. § 1983 claim.
Under section 201 of the ADA, "public entity" means: "(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of the State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 502(8) of title 45)." 42 U.S.C. § 12131 (1994). None of the proffered facts would allow a reasonable trier of fact to conclude that St. John's was an instrumentality of the state. See Ellis v. Morehouse School of Medicine, 925 F. Supp. 1529, 1539 (N.D. Ga. 1996) (deciding that a private medical school was not a public entity); McDonald v. Com, of Mass., 901 F. Supp. 471, 478 (D. Mass. 1995). In light of these observations, the Court concludes that St. John's is not a "public entity" as defined by Title II of the ADA. Therefore the ADA claims contained in the Second Amended Complaint ¶¶ 6, 13, 18, 22 and 24 warrant dismissal.
C. Title III of the ADA.
Construing Plaintiffs pro se complaint broadly, he may have meant to assert claims under Title III, rather than Title II, of the Act. Title III actually does pertain to private entities, such as St. John's. If that was Plaintiffs intent, however, the effort still falls short of the mark.
The Second Amended Complaint solely requests monetary damages. The remedies available under Title III are those that are available under 42 U.S.C. § 2000a(3)(a). See 42 U.S.C. § 12188(a)(1). Under § 2000(a)(3)(a), damages are unavailable to private plaintiffs.See Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 401-402 (1968). Therefore, damages are also not available to private plaintiffs under Title III. See, e.g., Jairath v. Dyer, 972 F. Supp. 1461, 1465 (N.D. Ga. 1997) (collecting cases), vacated on other grounds, 154 F.3d 1280 (11th Cir. 1998); see also 42 U.S.C. § 12188(a) (2) ("Title III of the ADA does not provide for monetary damages or, concomitantly, a jury trial, when the action is brought by a "person who is being subjected to discrimination."); 135 Cong. Rec. 19,855 (1989) (remarks of Senator Harkin, chief Senate sponsor of the ADA) ("Title III . . . expressly limits relief to equitable remedies").
Plaintiff argues that, despite this authority to the contrary, he is entitled to "compensatory education damages." Plaintiffs Memorandum at 10. According to the Court's research, such "compensatory education damages" have only been awarded under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 et seq. ("IDEA"). See,e.g., Melvin By ex rel. Martell v. Town of Bolton Sch. Dist, No. 95-7646, 100 F.3d 944 (Table), 1996 WL 75751, at *1 (2d Cir. February 20, 1996). However, Plaintiff has not invoked the IDEA in either his initial complaint or in his two subsequent amended complaints. Moreover, Plaintiff has not advanced any convincing case law or arguments as to why he should be allowed to invoke "compensatory education damages" in the Title III context.
The Court notes that Plaintiff has not requested leave to amend his complaint again to include an IDEA claim. In fact, Plaintiffs Opposition Memorandum fails to even mention the IDEA.
For the reasons discussed above, the Court finds Plaintiffs argument unpersuasive. Plaintiff has failed to articulate a valid claim for compensatory damages against St. John's under either Title II or Title III of the ADA. Accordingly, summary judgment is proper for Plaintiffs ADA claims, which are contained in the Paragraphs 6, 7, 13, 14, 18, 19, 22 and 24 of the Second Amended Complaint.
Had Plaintiff prayed for injunctive relief under Title III, such a claim would have been mooted by his graduation. See Dennin v. Connecticut Interscholastic Athletic Conf. Inc., 94 F.3d 96, 101 (2d Cir. 1996): see also Filardi v. Loyola Univer., No. 97-CV-1814. 1998 WL 111693, at *3 (N.D. Ill. March 12, 1996). "In the absence of a class action," the Second Circuit has held that a claim is only rescued from mootness if "`there [i]s a reasonable expectation that the same complaining party would be subjected to the same action again,'" and "the appellant must show that `these same parties are reasonably likely to find themselves again in dispute over the issues raised in this appeal.'" Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) and Video Tutorial Services. Inc. v. MCI Telecomm. Corp., 79 F.3d 3, 6 (2d Cir. 1996) (per curiam)) (alteration in original and internal citations omitted). Plaintiff has failed to make such a showing in the instant case.
Even if Plaintiff had asserted a valid claim under the ADA, which he does not, his claims against the individual Defendants would still fail. See Coddington v. Adelphi Univ., 45 F. Supp.2d 211, 217 (E.D.N.Y. 1999) (Wexler, J.) (Where a plaintiff seeks relief against an educational institution, the institution is the proper defendant, not the individual deans); Emerson v. Thiel Coll., 296 F.3d 184, 189 n. 3 (3d Cir. 2002) (same).
D. Rehabilitation Act
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides that "[n]o otherwise qualified individual with handicaps . . . shall, solely by reason of her or his handicap, . . . be denied the benefits of . . . any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794. It is undisputed that, as a recipient of federal funds, the Rehabilitation Act applies to St. John's. See Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 78 (2d Cir. 2000). The Court therefore turns to the elements of a claim under this Act.
The Court notes that Plaintiff asserts no claim that Defendants denied him actual access to any particular "program or activity." To the contrary, Plaintiffs Second Amended Complaint centers on Defendants' insistence that he attend and pass a Tax course, i.e. that he was asked to participate too much and that this somehow denied him "meaningful" access and participation to St. John's.
The elements of a Rehabilitation Act claim are "identical" to that of an ADA claim, Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999), except that under the Rehabilitation Act, the defendant must have discriminated against the plaintiff "solely" because of the plaintiffs disability, whereas under the ADA, it is enough if the plaintiffs disability was a motivating factor in the discrimination, see Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000); see also Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (setting forth elements of prima facie case under the Rehabilitation Act). To state a prima facie case of discrimination under the ADA, a plaintiff must show: (1) that he is an individual with a disability within the meaning of the statute; (2) that his defendant is subject to the ADA (or the Rehabilitation act in this case) and had notice of the disability; (3) that the plaintiff was otherwise qualified to perform the essential functions of his position, with or without reasonable accommodation; and (4) that he suffered an adverse action because of the disability.See Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program. Inc., 198 F.3d 68, 72 (2d Cir. 1999).
With regard to a disability, Plaintiff must proffer facts sufficient to allow a reasonable trier of fact to conclude that (1) Plaintiff is afflicted with a physical or mental impairment and (2) that Plaintiffs impairment constitutes a disability. See Toyota Motor Mfg., Kentucky. Inc. v. Williams, 534 U.S. 184, 193 (2002); Bragdon v. Abbott, 524 U.S. 624, 632-639 (1998). The Court finds that, based upon Plaintiffs submissions, an impairment could exist. Despite this conclusion, not all impairments constitute a disability. See Conroy v. New York State Dept. of Corr. Servs., 333 F.3d 88, 96 (2d Cir. 2003). "The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." Id. Therefore, focusing upon the overall effects of Plaintiffs impairments, the Court turns to whether a reasonable trier of fact could conclude that those impairments constitute a disability. Under the ADA, a disability is: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) a record of such an impairment or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2).
1. Substantial Limitation of a Major Life Activity.
Major life activities are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(h)(2)(1). The listed activities are "examples only," and other major life activities include, but are not limited to, standing, sitting, lifting or reaching.See Ryan v. Grae Rybickl P.C., 135 F.3d 867 (2d Cir. 1998). Plaintiff points to his abilities to learn, speak and read as his substantially limited major life activities. See Plaintiffs Opp. Mem. at 13. The Court therefore considers whether Plaintiffs evidence of learning impairments would allow a reasonable trier of fact to conclude that he is substantially limited in his ability to learn, speak or read.
With regard to his ability to learn, Plaintiff relies upon documents indicating that individual aspects of his ability to learn were below average. Specifically, Plaintiff notes that he scored in the thirtieth percentile in "Broad Math Ability," and in the eighteenth percentile in "Calculation Ability." Certain other "subtests" in the record also indicate a low percentile. However, despite Plaintiffs contentions to the contrary, "not every impairment constitutes a disability under the ADA." Bartlett 226 F.3d at 74. As such,
[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis [or other evidence] of an impairment. Instead, the ADA requires [that claimants offer] evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.Toyota Motor, 534 U.S. at 198 (internal quotations and citations omitted).
All of the submitted evidence indicates that, despite his noted impairments, Plaintiffs overall intellectual functioning level lies in the "high average" or "superior" range. See, e.g., Plaintiffs Ex. A at 1; Plaintiffs Ex. C at 3; see also Plaintiffs Ex. E, Q. Moreover, all of these reports indicate that the assessments took into account his difficulties with arithmetic and spelling. See Calef v. Gillette Co., 322 F.3d 75, 84 (1st Cir. 2003) (discussing favorably overall indications of above average ability that took into account specific weaknesses and impairment). Most importantly, Plaintiff has not proffered any evidence that would allow a reasonable trier of fact to conclude that his impairments substantially limit his major life activities of learning. Indeed, all of the available evidence indicates the contrary. Plaintiff has graduated from high school, from a prestigious undergraduate university and from a highly regarded accredited law school. "[H]is life experience shows no substantial limitation on learning as required by Toyota. . . . These facts doom the [Rehabilitation Act] claim." Id. Stated differently, in comparison with most people, the undisputed facts regarding Plaintiffs history of learning betray no substantial restrictions. Rather, in comparison with most people, Plaintiff has exhibited a superior ability to learn, notwithstanding the impairments to his spelling and arithmetic skills. See 28 C.F.R. Pt. 35, App. A § 35.104 (1999) ("A person is considered an individual with a disability . . . when the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people."); cf. Sutton v. United Air Lines. Inc., 527 U.S. 471, 491-492 (1999) (the inability to perform a particular job or class of jobs does not qualify as a substantial limitation on the major life activity of work).
Plaintiff has similarly failed to proffer any evidence that would allow a reasonable trier of fact to conclude that he was substantially limited in the major life activities of reading or speaking. None of the proffered evidence indicates that Plaintiffs overall ability to read is substantially limited. Where Plaintiffs overall ability to read is referenced, the undisputed evidence states that his "word recognition and reading comprehension appear to be somewhat above grade level," Plaintiffs Ex. A, that "[t]here was no evidence of reading disability at this time as [Plaintiff] tested at grade level," Plaintiffs Ex. B, that "it appears that there is no reading disability," id., or that his comprehension is "superior," see Plaintiffs Ex. E. Plaintiff has proffered no evidence to the contrary. Therefore, no reasonable trier of fact could conclude that he is substantially limited in his ability to read. See Defendants' Supp. Ex. A at 305 (Plaintiff testified that he had no difficulty reading and briefing cases at St. John's). The evidence regarding Plaintiffs ability to speak is almost non-existent. His high school classified him as "Speech Impaired." See Plaintiffs Ex. A. However, the proffered reports only state that his "verbal abilities [are] at the lower-most limit of the superior range." Plaintiffs Ex. A at 1. Plaintiff also provided deposition testimony discussing his speech impairment. See Defendants' Supp. Ex. A at 51-52. In that testimony, Plaintiff stated he stammers on occasion, although not every day, and that his speech impairment never prevented him from answering a question in law school. Id. This evidence, evaluated collectively, is insufficient to allow a reasonable trier of fact to conclude that Plaintiff was substantially limited in his ability to speak.
In reaching these conclusions, the Court is aware of the Second Circuit's decision in Bartlett, In that case, the Second Circuit remanded a case to the district court to determine whether the plaintiffs dyslexia substantially limited the major life activity of "reading." This remand was made because "the court relied on its finding that Bartlett had achieved `roughly average reading skills (on some measures) when compared to the general population.' [However, i]t is not enough that Bartlett has average skills on `some' measures if her skills are below average on other measures to an extent that her ability to read is substantially limited." Bartlett. 226 F.3d at 81 (citations removed). In the instant case, however, the Court does not base its conclusions upon above average abilities in a few areas. Instead, the Court concludes that, based upon the evidence concerning Plaintiffs overall ability to learn, speak and read, the identified impairments are too isolated and minor to allow a reasonable trier of fact to conclude that he was substantially limited in those major life activities. The Court therefore turns to the second test of whether an impairment constitutes a disability.
2. Record of Substantially Limiting Impairment.
An employee can show that she has a disability within the meaning of the ADA under § 12102(2)(B)
if a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment. . . . The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities. . . . The record must be one that shows an impairment that satisfies the ADA; a record reflecting a plaintiffs classification as disabled for other purposes or under other standards is not enough.Colwell v. Suffolk County Police Dept., 158 F.3d 635, 645 (2d Cir. 1998) (citations omitted).
"For reasons similar to those stated in rejecting [Plaintiffs] § 12102(2)(A) claim," Plaintiffs evidence of certain accommodations in high school and college "do not suffice to establish a record that his impairment created a substantial limitation of his ability to learn, read or speak. See Jacques v. DiMarzio. Inc., 200 F. Supp.2d 151, 159 (E.D.N.Y. 2002). "Accordingly, the Court concludes [Plaintiff] has failed to make out a prima facie case that he had a record of a disability under the ADA." Id. As such, the Court continues on to the third test.
3. Regarded as Having a Disability.
Under § 12102(2)(C), "the decisive issue is [St. John's] perception of his . . . alleged impairment." Giordano v. City of New York, 274 F.3d 740, 748 (2d Cir. 2001). To withstand the instant summary judgment motion Plaintiff "must show not only that the defendant regarded [him] as somehow disabled, but that [it] regarded [him] as disabled within the meaning of the ADA."Id. (emphasis added). Plaintiff points to his exhibits A through H as evidence that "Defendants certainly regarded Plaintiff as having a disability which substantially affected his ability to learn." Plaintiffs Memorandum at 13. The Court turns to these exhibits to determine whether a reasonable trier of fact could conclude that Defendants regarded Plaintiff as substantially limited in his ability to learn.Several of these exhibits provide no probative evidence at all. Exhibit A is composed of Plaintiff s Carle Place records. This provides no support for the contention that Defendants regarded Plaintiff as substantially limited in his ability to learn. Exhibit B comprises test results for an examination that he underwent in High School. This also has no probative value for the instant question. Exhibits E and F fail to provide probative value for similar reasons. Both exhibits relate to tests and procedures at Curry College. The balance of the exhibits relate to the proper issue — Defendants' perception of Plaintiffs impairments.
Exhibit C is Plaintiffs "Confidential Psychoeducational Evaluation" for St. John's. This document states that "[a]though previously Learning Disabled/Speech Impaired while in high school, [Plaintiff]'s documentation is both insufficient and outdated." In its conclusion, the Evaluation stated that "Daniel displays ability achievement as well as intra-cognitive discrepancies, both indicative of a learning disability. In light of these findings, the following recommendations are made so that [Plaintiff]'s deficient spelling skills do not keep him from achieving up to his potential as a law student." Although this language refers to a learning disability, it does not indicate that Defendants considered Plaintiff was substantially limited with regard to his ability to learn, as defined by the statute. To the contrary, in Exhibit C, St. John's refers to Plaintiffs "superior" intellectual ability and notes that accommodations with regard to a spelling impairment would allow him to reach his potential. Exhibit G is a letter from the St. John's psychologist that summarizes the evaluation. This letter indicates that Plaintiffs
learning disability continues to severely impact upon his spelling abilities. In terms of testing accommodations, the need for extended time for exams is not evident. The accommodation necessary is to ensure that spelling errors do not hold the student back from achieving his highest possible test grade.Id. (emphasis added).
Exhibit D is composed of various "Examination Conflict Request Forms." These forms require a reason for granting Plaintiff an accommodation. On these sheets, the box marked "Other" is checked and in the space next to it, "Learning Disability" is written in. In other sections, this "learning disability" is referred to as "medical."
Exhibit H is a letter from St. John's Dean Susan J. Stabile to the New York Board of Law Examiners. This letter indicated that "[i]n order to accommodate [Plaintiff]'s documented learning disability, St. John's allows him to take his examinations with a computer and gives him extra time (time and a half) for his exams."
The Court has evaluated these exhibits. Taken cumulatively, they indicate that St. John's recognized a "learning disability [that] continues to severely impact upon his spelling abilities." Plaintiffs Ex. G (emphasis added). All of the other evidence merely documents the ministerial administration of this conclusion that Plaintiff suffered from a specific impairment. In fact, where there is further discussion of his impairment, the language utilized indicates that the accommodations are necessary only for Plaintiff to achieve at the highest level, not to allow him to participate. See id. ("the need for extended time for exams is not evident. The accommodation necessary is to ensure that spelling errors do not hold the student back from achieving his highest possible test grade."). The recognition of a spelling impairment, even if considered severe, does not constitute a recognition of disability under the ADA. " [T]he mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action.'" Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 153 (2d Cir. 1998) (emphasis added) (quotingKelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996)). Therefore, the Court concludes that Plaintiff has failed to proffer evidence that would allow a reasonable trier of fact to conclude that St. John's regarded Plaintiff as disabled under the ADA. See generally Conant v. City of Hibbing, 271 F.3d 782, 785-786 (8th Cir. 2001) (discussing how evidence indicating that an employer considered modifying certain job requirements did not provide evidence that defendant regarded the plaintiff as disabled); Betts v. Rector and Visitors of University of Virginia, 18 Fed. Appx. 114, 118-119 (4th Cir. 2001) (stating how a university policy that no testing accommodations would be granted unless it was satisfied that the student was disabled within the meaning of the ADA sufficed to demonstrate that a student that actually received accommodations was regarded as disabled); Thornton v. McClatchy Newspapers. Inc., 261 F.3d 789, 798 (9th Cir. 2001) (testimony by coemployees demonstrating their awareness of employee's keyboarding and handwriting restrictions, and evidence that employer considered variety of measures to accommodate those restrictions, did not establish that employer regarded employee as disabled within meaning of ADA); cf.Rodriguez v. Department of Alcoholic Beverage Control of State of California, No. CV-97-063580, 211 F.3d 1274 (Table), 2000 WL 222606 (9th Cir. February 25, 2000) (noting that an expression of hesitation or concern whether a plaintiff was disabled under the ADA did not suffice).
The Court notes that the law is unsettled as whether accommodations are even required when the plaintiff is "regarded as disabled." See Jacques, 200 F. Supp.2d at 159-161.
Plaintiff has failed to proffer any evidence that would indicate that St. John's regarded him as substantially limited in his ability to read or speak. In fact, Plaintiff has advanced no argument with regard to those two major life activities, confining his discussion to his ability to learn. The Court's independent review of the proffered exhibits revealed no evidence that St. John's regarded Plaintiff as substantially limited in his ability to read or speak. Accordingly, no reasonable trier of fact could conclude that St. John's regarded Plaintiff as substantially limited in his abilities to speak and read. Since no reasonable trier of fact can conclude that Plaintiff was disabled as defined by the Act, Plaintiff can articulate no claims under the Rehabilitation Act.
The Court notes that, even if Plaintiff had proffered evidence that would allow a reasonable trier of fact to conclude that he was disabled under the relevant definition, the allegations regarding his supposed mistreatment are belied by the undisputed evidence. For example, Plaintiffs Second Amended Complaint alleges that he was denied "any avenue of appeal" and also "was denied any testing modification."See Second Amended Complaint ¶ 5. However, the undisputed evidence indicates that these statements were affirmatively false.See Defendants' Ex. F (Plaintiffs Deposition) at 211-212 and 252.
E. Failure to Accommodate
Assuming arguendo that Plaintiff was disabled under the relevant definition, he has still failed to proffer any facts that would allow a reasonable trier of fact to conclude that St. John's failed to reasonably accommodate him. The undisputed facts show that he was immediately granted some accommodations and that he was eventually granted all of the testing accommodations that he requested. In fact the only requested accommodation that was not granted to Plaintiff was a waiver of a core curriculum requirement — the Tax Course. However, a disabled plaintiff is not entitled to have all of his proposed accommodations adopted, immediately or otherwise, so long as the offered accommodations are "reasonable" to avoid discrimination based on disability. See Fink v. New York City Dep't of Personnel, 53 F.3d 565, 567 (2d Cir. 1995). Plaintiff has proffered no evidence that would allow a reasonable trier of fact to conclude that the accommodations made by St. John's were "unreasonable." See Garcia v. State Univ. of New York Health Sciences Center at Brooklyn, No. CV 97-4189, 2000 WL 1469551, at *11 (E.D.N.Y. August 21, 2000) (Raggi, J.) (holding that it was not unreasonable for a medical school to require a learning impaired student to pass a core curriculum requirement).
F. Hostile Learning Environment.
Similarly, assuming arguendo that Plaintiff is within the protected class under the Rehabilitation Act, Plaintiffs hostile learning environment claim would still fail. Plaintiff contends that he was subjected to "hostile testing conditions that his fellow non-learning disabled student were not." Second Amended Complaint ¶ 12. Certain courts have concluded that there "is a cause of action under the ADA and the Rehabilitation Act for a hostile learning environment when harassment based on a student's disability has `the purpose or effect of unreasonably interfering with [the] individual's performance or [of] creating an intimidating, hostile, or offensive environment.'"Guckenberger v. Boston University, 957 F. Supp. 306, 314 (D. Mass. 1997) (quoting Brown v. Hot. Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir. 1995)). As discussed supra, Plaintiff has not alleged any cognizable ADA claims. Accordingly, the Court focuses upon the Rehabilitation Act.
Within this Circuit, certain district courts have adopted the reasoning of Guckenberger. see Pell v. Trustees of Columbia Univ., No. 97 Civ. 0193. 1998 WL 19989. at *17 (S.D.N.Y. January 21, 1998), while others have not, see Hamilton v. City College of City Univ., 173 F. Supp.2d 181, 185 n. 1 (S.D.N.Y. 2001). However, assuming the existence of such a claim in the Second Circuit, Plaintiff has failed to satisfy his responsive burden of production. When, as was done here, the movant identifies the absence of genuine issues of material fact, the non-movant, Plaintiff in this case, must proffer facts that would allow a reasonable trier of fact to conclude that he was subjected to a hostile learning environment on the basis of his disability. Plaintiff has failed to proffer such facts."
[T]he determination of whether the alleged conduct violates [the Rehabilitation Act] turns on the severity and pervasiveness of the conduct." Pell, 1998 WL 19989, at * 17 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). For a general hostile environment claim to withstand a motion for summary judgment, a plaintiff must proffer facts that would allow a reasonable trier of fact to conclude that the alleged harassment creates an objectively hostile or abusive environment and that the alleged victim subjectively perceives the environment to be abusive. See Harris, 510 U.S. at 21-22. It is undisputed that Plaintiff subjectively viewed this environment as objectionable. Harassment is objectively abusive if the environment is "permeated with `discriminatory intimidation, ridicule, and insult.'"Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 64-65 (1986)). "To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002); see also Harris, 510 U.S. at 23 (relevant factors include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance"). The Court therefore turns to the harassment identified by Plaintiff.
Plaintiff alleges that the following facts contribute to his hostile learning environment claim: (1) "the adverse conditions in which the accommodations [that he] was granted were administered," (2) "searching repeatedly for a room in which to take [his] exams," (3) "unbearable climate conditions in the rooms." (4) "not being informed of critical typos," (5) not being "given necessary handouts for exams," and (6) "having someone else fill out my `bubble sheets' when I was given the incorrect scoring card." Plaintiffs Memorandum at 17. After reviewing the evidence, the Court concludes that this hostile learning environment claim is unsupported by evidence that would allow a reasonable trier of fact to find in Plaintiffs favor.
Plaintiffs first contention does little to aid his hostile learning environment claim. Plaintiff contends that he was forced to take his examinations "a full hour and a half before to the rest of the students." Second Amended Complaint ¶ 12. However, the undisputed facts indicate that this extra time was requested as an accommodation by Plaintiff. Therefore, Plaintiff is alleging that he was unduly harassed by receiving the extra time at the beginning of the testing period rather than at the end. Moreover, Plaintiff admits that this was "just inconvenient" and that it "wouldn't work" to have the test proctors stay the extra time at the end of the exam.See Plaintiffs Deposition at 252, 258.
Plaintiffs second basis for the hostile work environment, "searching repeatedly for a room in which to take [his] exams," is supported by Plaintiffs deposition testimony that on three occasions he had difficulty finding the test room. Id. at 273. Plaintiff does not allege that he was in any way prejudiced by this difficulty or delay. Notably absent is any allegation that he was late for his exams or that his grade suffered.
Plaintiffs third basis for the hostile learning environment references "unbearable conditions" in the exam rooms. In support of this contention, Plaintiff contends that his individual exam room in the library was often unduly noisy. Id. at 275. Plaintiff admits that the proctors attempted to address the noise but were ultimately ineffective.Id. Plaintiff does not indicate how this noise affected him. Nor does Plaintiff indicate that this noise was reflective of any animus towards his disability.
Plaintiff also indicates that a "critical typo" on one exam contributed to a hostile learning environment. Id. Plaintiff does not endeavor to explain how this typo was critical or whether he was the only one that was not informed. Moreover, the evidence indicates that Plaintiff received a grade in that exam that was higher that his grade point average. Id at 268.
Plaintiff also alleges that he was not "given necessary handouts for exams."As discussed supra at 8, Plaintiff did not receive a handout relating to his Tax examination. However, it is undisputed that Plaintiff was not the only student to miss the handout. It is equally undisputed that the professor was instructed to take the absence of that handout into account when grading. Moreover, despite the use of the plural, no other similar incidents are noted in either the various complaints or in the evidentiary record.
Finally, the Court turns its attention to Plaintiffs contention that "having someone else fill out my `bubble sheets' when I was given the incorrect scoring card" constituted harassment. Plaintiffs testimony regarding this allegation indicates that, on an examination with two hundred multiple choice questions, Plaintiff put one hundred answers each on separate scan sheets. Id. at 276. The questions were supposed to go on a single scan sheet-numbered one to two hundred.Id. Plaintiffs claim is based upon the fact that a secretary transferred these two sets of answers to a single sheet on his behalf.Id. Plaintiff contends that this was harassing because he "should get a chance to refill out the question [sheet] or to check her work." Id.
The Court has "examine[d] the[se] case-specific circumstances in their totality and evaluate[d] the severity, frequency, and degree of the abuse." Alfano, 294 F.3d at 374. As part of this analysis, the Court has also considered "whether [the asserted instances of harassment are] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. Considering these factors and the cumulative effect of the evidence listed supra, the Court concludes that no reasonable trier of fact could conclude, on this evidence, that the learning environment was "permeated with `discriminatory intimidation, ridicule, and insult.'" Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64-65). Plaintiff has apparently conflated "harassment" with "annoyance" or "inconvenience." Viewed objectively, the identified events are simply too trivial to constitute a hostile learning environment.
G. Fraudulent Misrepresentation.
To state a claim for fraudulent misrepresentation under New York law, a plaintiff must demonstrate:(1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff. See Fax Telecommunicaciones Inc. v. AT T, 138 F.3d 479, 490 (2d Cir. 1998). In opposition to the instant summary judgment motion, Plaintiff has asserted no facts by which a reasonable trier of fact could conclude that the first, second, third or fourth elements of this claim have been satisfied. Plaintiff has not indicated what statement was false, how it was false, how reliance was intended, or how he actually relied upon that statement. In fact, Plaintiff offers no opposition at all on this point. Therefore, summary judgment is appropriate.
H. Breach of Contract.
Plaintiff also alleges that St. John's breached a contract between Plaintiff and Defendants "by failing to fulfill the specific promise of assistance to individuals covered by the Americans with Disabilities Act." Second Amended Complaint ¶ 23. The specific promise cited by Plaintiff was the promise in its admissions materials and handbooks regarding compliance with "all federal, state and local laws." Defendants' Ex. F at 179-180. In Gaily, v. Columbia Univ., 22 F. Supp.2d 199 (S.D.N.Y. 1998), a similar argument was advanced. 22 F. Supp.2d at 206. "When a student enrolls at a university, an implied contract arises: if the student complies with the terms prescribed by the university, she will obtain the degree she seeks." Id. However, in the instant case, Plaintiff actually graduated. Moreover, the broad language cited by Plaintiff constitutes broad policy statement, not the basis for a valid contract claim. See Ward v. New York Univ., No. 99 CIV. 8733, 2000 WL 1448641, at *4 (S.D.N.Y. September 28, 2000) ("broad pronouncements of the University's compliance with existing anti-discrimination laws, promising equitable treatment of all students . . . cannot form the basis for a breach of contract claim."). In light of these observations, the Court concludes that summary judgment is appropriate for this claim.
I. Fraudulent Inducement.
For Plaintiffs fraudulent inducement claim to withstand summary judgment, Plaintiff must proffer facts that would allow a reasonable trier of fact to conclude that there was (1) a representation of material fact; (2) falsity; (3) scienter; (4) reasonable reliance; and (5) injury. See Consolidated Edison. Inc. v. Northeast Utilities, 249 F. Supp.2d 387, 399 (S.D.N.Y. 2003). As with his fraudulent misrepresentation claim. Plaintiff has failed to proffer evidence that would support any of these elements. Plaintiffs conclusory statement in the Second Amended Complaint that Defendants' never intended to abide by the ADA is insufficient to withstand summary judgment. See Second Amended Complaint ¶ 25. As such, summary judgment is appropriate for this cause of action.
J. Section 1983.
Plaintiff also asserts that Defendants infringed upon his Fifth and Fourteenth Amendment rights, in violation of 42 U.S.C. § 1983."In order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law." Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).
Plaintiff argues that "[b]ecause the program of a law school is dictated and regulated by that state's Court of Appeals it acts under color of state law. The very courses that are studied in law school are created with the specific intention of following a set of standards prescribed by and ruled over by the state Court of Appeals and the American Bar Association." Plaintiffs Opposition Memorandum at 8. Plaintiff refers to a St. John's admissions document that references the New York Court of Appeals' requirements for bar admission. See Plaintiffs Ex. J at 13. Despite this proffer, Plaintiff has failed to proffer any evidence that would allow a reasonable trier of fact to conclude that the New York Court of Appeals either directly controlled St. John's or was so entwined with St. John's that it was, essentially, operated by the state, see generally Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Plaintiffs contention that the "American Bar Association sets out requirements for law schools including how many hours per week a student is permitted to work" is similarly unavailing. See Rohan v. American Bar Ass'n, No. 93 CV 1338, 1995 WL 347035, at * 7 (E.D.N.Y. May 31, 1995) (holding that the ABA is not a state actor). Due to these failures, Plaintiff has failed to controvert Defendants' admissible evidence that St. John's remains a private actor for the purposes of the instant action. As such, no Section 1983 claim is cognizable.
III. CONCLUSIONS
In light of the foregoing, Defendants' summary judgment motion is GRANTED. The Clerk of Court is directed to CLOSE this case.
SO ORDERED.