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Purcell v. Tulane University of Louisiana

United States District Court, E.D. Louisiana

December 17, 2018

BRANDON PURCELL, ET AL.
v.
TULANE UNIVERSITY OF LOUISIANA, ET AL.

         SECTION: “H”

          ORDER AND REASONS

          JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' Motion for Summary Judgment (Doc. 199). For the following reasons, the Motion is GRANTED.

         BACKGROUND

         This lawsuit arises out of the circumstances surrounding Plaintiff Brandon Purcell's departure from Tulane University's football team in 2015. Purcell, a kicker, claims he was cut from the team because of his learning disability in violation of federal and state law. Defendants respond that Purcell was in fact cut because, among other reasons, he was simply not a good football player.

         Plaintiffs, who include Purcell's parents, filed this lawsuit on March 3, 2016.[1] Plaintiffs' Complaint included numerous claims against numerous defendants.[2] Since then, this Court has twice granted in part Motions to Dismiss filed by defendants in this action.[3] The only remaining Defendants include the Administrators of the Tulane Educational Fund (“Tulane”), which was incorrectly designated as “the Tulane University of Louisiana, ” and Byron Ellis, Tulane's Director of Football Operations. The claims that remain against Tulane include alleged violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the Louisiana Civil Rights Act for Persons with Disabilities. The remaining claims against Ellis include a Louisiana state law defamation claim by Brandon Purcell and associated state law loss of consortium claims by his parents.

         On October 4, 2018, Defendants Tulane and Ellis filed this Motion for Summary Judgment pertaining to all Plaintiffs' remaining claims.[4] Plaintiffs oppose.[5] This Court will analyze the claims remaining against Tulane before turning to those pending against Ellis.

         LEGAL STANDARD

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[6] “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”[7] Nevertheless, a dispute about a material fact is “genuine” such that summary judgment is inappropriate “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[8]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[9] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[10] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[11]

         “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”[12] The Court does “not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[13] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[14]

         LAW AND ANALYSIS

         I. Americans with Disabilities Act Claims

         Plaintiffs concede that they lack standing to pursue their claims against Tulane under Title III of the ADA.[15] As such, those claims are dismissed with prejudice.

         II. Rehabilitation Act Claims

         Section 504 of the Rehabilitation Act prohibits discrimination against qualified individuals with disabilities.[16] The statute provides,

No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.[17]

         The Act defines an “individual with a disability” as “any individual who has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment.”[18] The Act further defines “program or activity” to include “all the operations of . . . a college, university, or other postsecondary institution.”[19]

         For purposes of this Order and Reasons, this Court will assume that Purcell's learning disability qualifies him for protection under the Rehabilitation Act and that Tulane qualifies as a program under the Act from which Purcell cannot be excluded based on his disability.[20] The question, then, is whether Tulane violated the Act when it released Purcell from its football team.

         Purcell alleges that Tulane violated the Act in three distinct ways. First, he claims that Tulane discriminated against him because of his disability when he was cut from the football team in March 2015, subsequently reinstated, and then cut again in August 2015. Second, Purcell claims that Tulane allowed a hostile environment to flourish because “Purcell was subjected to harassment as a result of complaining about discrimination.”[21] Third, and finally, Purcell claims Tulane retaliated against him by cutting him from the team a second time after Purcell complained to the university that he was cut the first time because of his disability.[22] The Court will analyze each claim separately.

         a. Disability Discrimination Claim

         Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[23] Accordingly, to succeed on a discrimination claim under the Act, a plaintiff must show that he suffered discrimination solely because of his disability.

         Brandon Purcell was twice cut from Tulane's football team, first in March 2015 and then again in August 2015. In the spring of 2015, Purcell scheduled morning classes. He testified that he scheduled classes in the morning to accommodate for his learning disability. Because Purcell scheduled morning classes, he missed spring football practices, which were held in the mornings. Purcell testified that when he was cut in March of 2015, Special Teams Coach Doug Lichtenberger told him it was because he missed too many practices. Therefore, Purcell argues, he lost his spot on the team solely because of his disability. He argues that any other reasons Tulane cited as justification for cutting Purcell are merely pretextual.

         Plaintiffs' argument suffers from fatal flaws. At the outset, this Court notes that Purcell's disability accommodation plan did not mandate that he take morning classes.[24] He in fact took many afternoon classes throughout his education at Tulane, eventually graduating with a 3.6 cumulative GPA.[25]Purcell even testified that he “never declared that [he] could only take morning classes.”[26] Further, Coach Lichtenberger testified that he did not even know about Purcell's disability when he cut Purcell from the team in March 2015.[27]Head Coach Curtis Johnson testified similarly that he did not know what Purcell's disability was or what accommodations he received, only that he knew Purcell received accommodations.[28]

         Even if Lichtenberger and Johnson both knew about Purcell's disability before he was cut, no evidence aside from Plaintiffs' own testimony suggests the coaches dismissed him because of his disability. Plaintiffs' argument ignores the testimony by the Tulane coaches that Purcell simply was not a good football player. Lichtenberger testified that the reason Purcell was cut “[m]ostly had to do with his ability.”[29] He also testified that Purcell “was not a Division I kicker” and that “[he] did not have the skills of an FBS level kicker.”[30] Coach Johnson testified that “[m]y biggest problem was [Purcell] could not kick the ball that was snapped and set on the tee in a timely manner. He couldn't do it.”[31] Johnson further testified that Purcell “couldn't kick the ball in a timely manner and get it through the upright. . . . and he couldn't play a receiver, or he couldn't play a running back, [so] he had little value.”[32] Put succinctly, the coaches testified that Brandon Purcell was not a good football player.

         Plaintiffs fail to produce any evidence besides self-serving testimony to counter testimony by the coaches that Purcell was not a good football player.[33]A lack of ability certainly qualifies as a non-discriminatory reason to cut a kicker from a football team. Thus, Purcell cannot carry his burden of proof to show that he was released solely because of his disability.[34]

         It is not for this Court to decide whether Coach Lichtenberger should have told Purcell every reason that he was being cut from the beginning. Instead, it is this Court's duty to determine whether Plaintiffs produced evidence aside from self-serving testimony to counter Defendants' overwhelming evidence that Purcell was not released solely because of his disability. Plaintiffs have not done so.

         Regarding Purcell's post-reinstatement release in August 2015, the coaches testified that all the same problems persisted after his reinstatement, except that in the fall Purcell also suffered an injury that prevented him from practicing. Because there were too many kickers on the team, Purcell was not among the best, and he could not practice due to his injury, they cut him again. None of these reasons represent disability-based discrimination. Plaintiffs therefore have not shown that Purcell was cut either the first or second time solely because of his disability.

         b. Hostile Environment Claim

         To establish a hostile environment claim under Section 504 of the Rehabilitation Act, a plaintiff must show:

(1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) [defendant] knew about the harassment, and (5) [defendant] was deliberately indifferent to the harassment.[35]

         Even assuming Purcell qualifies as a disabled individual protected by the Act, Plaintiffs have failed to provide evidence showing Purcell was harassed based on his disability. Plaintiffs submit evidence showing that Purcell was sent harassing messages because of his Jewish religion, because he involved his family in his school-related grievances, and for other reasons completely unrelated to Purcell's learning disability.[36] No. evidence suggests Purcell was harassed based on his learning disability. Further, Plaintiff cannot show that Tulane was deliberately indifferent to the alleged harassment. Tulane coaches and administrators met with Brandon Purcell and his parents on numerous occasions throughout 2015. Tulane's Office of Institutional Equity conducted an investigation and issued a report regarding Purcell's complaints to the university. Tulane's Division of Student Affairs and the Tulane Police Department also were involved. These facts show that Tulane's response to Purcell's complaints was not “clearly unreasonable in light of the known circumstances.”[37] Thus, Plaintiff has failed to produce evidence sufficient to create a genuine dispute of material fact as to whether Purcell was harassed based on his disability and as to whether Tulane was deliberately indifferent to Purcell's complaints of harassment. This claim fails as a matter of law.

         c. Retaliation Claim

         To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must show: (1) he engaged in a protected activity; (2) the defendant took an adverse action against him; and (3) a causal connection existed between the adverse action and the protected activity.[38] “Once a plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to show that it had a legitimate nondiscriminatory reason for taking the adverse . . . action.”[39] “If the defendant provides a legitimate nondiscriminatory reason for the [adverse] ...


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