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Pegues v. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

United States District Court, E.D. Louisiana

April 9, 2019

TERESA PEGUES, Plaintiff
v.
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, LSU SCHOOL OF DENTISTRY AND FACULTY DENTAL PRACTICE, Defendant

         SECTION "E" (1)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to dismiss, filed by Defendant Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, LSU School of Dentistry and Faculty Dental Practice (“LSU”).[1] The motion is opposed.[2] For the reasons that follow, the motion is GRANTED as to Counts 1 and 2 of Plaintiff's Second Amended Complaint. The Court REMANDS the remaining state law claim to the Civil District Court for the Parish of Orleans.

         BACKGROUND

         Plaintiff Teresa Pegues alleges she was a dental student at the LSU School of Dentistry diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in October 2015.[3] She alleges she needed extra time on examinations because of her ADHD, but several LSU professors told her “extra time would not be ‘necessary.'”[4] Plaintiff alleges that, in June 2016, she was told she failed a course and received two letters of dismissal from LSU.[5] She alleges she met with Deans Henry Gremillion and Sandra Andrieu on July 5, 2016 to discuss accommodations for her ADHD.[6] She alleges she was dismissed from the LSU School of Dentistry on July 15, 2016.[7]

         On June 30, 2017, Plaintiff filed a petition in Louisiana state court alleging Defendant LSU wrongfully discriminated against her and dismissed her from the LSU School of Dentistry.[8] The case was removed to this Court on March 6, 2018.[9] On March 13, 2018, Defendant moved to dismiss all claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6).[10] On May 3, 2018, the Court ordered Plaintiff to file an amended complaint to clarify her claims and the factual allegations on which those claims are based.[11] Plaintiff filed an amended complaint on May 18, 2018.[12] She states three claims: (1) failure to accommodate her disability in violation of Title II of the Americans with Disabilities Act (“ADA”), [13] (2) disability-based discrimination in violation of the ADA, and (3) disability-based discrimination in violation of Louisiana law.[14] She requests damages, injunctive relief in the form of reinstatement in the LSU School of Dentistry, declaratory relief, and attorneys' fees and costs.[15] On June 8, 2018, Defendant filed a motion to dismiss the amended complaint.[16]

         On August 27, 2018, the Court ordered Plaintiff to amend her complaint again to address the issue of whether her claims under Title II of the ADA are barred by sovereign immunity.[17] Plaintiff filed her Second Amended Complaint on September 17, 2018, incorporating by reference the claims in her Amended Complaint and stating her claims are not barred by sovereign immunity because LSU removed this case to this Court.[18] The Court denied as moot without prejudice LSU's motion to dismiss.[19]

         On September 24, 2018, LSU filed the instant motion.[20] LSU argues Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and alternatively, that they should be dismissed because they are barred by sovereign immunity. Plaintiff opposes.[21]

         LEGAL STANDARD

         “Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims.”[22] Whether a claim is barred by sovereign immunity bears on this Court's jurisdiction.[23] To the extent LSU argues Plaintiff's Title II claims are barred by sovereign immunity, the Court construes the instant motion as a motion to dismiss challenging the Court's subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.[24] Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”[25] “Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts.”[26]

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss a complaint, or any part of it, for failure to state a claim upon which relief may be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief.[27] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[28]“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[29] The court, however, does not accept as true legal conclusions or mere conclusory statements, and “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”[30] “[T]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements” or “naked assertion[s] devoid of further factual enhancement” are not sufficient.[31]

         In summary, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[32] “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.”[33] “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.'”[34]

         LAW AND ANALYSIS

         Generally, when “grounds for dismissal may exist under both Rule 12(b)(1) and Rule 12(b)(6), the Court should, if necessary, dismiss only under the former without reaching the question of failure to state a claim.”[35] In this case, LSU states two bases for its argument that this Court lacks jurisdiction over Plaintiff's Title II claims: (1) Louisiana has not waived its sovereign immunity for Title II claims[36] and (2) Congress did not validly abrogate sovereign immunity for Plaintiff's claims[37] under the Supreme Court's decision in United States v. Georgia, [38] LSU argues that, under Georgia, the Court should first determine whether Plaintiff states a claims for Title II violations before considering sovereign immunity.

         Because sovereign immunity bears on the Court's subject-matter jurisdiction, the Court must first address whether the State of Louisiana has waived its sovereign immunity for Plaintiff's claims.[39] The Court finds the State has waived its immunity to suit in federal court but has not waived immunity from liability. The Court then turns to whether Congress validly abrogated sovereign immunity under the three-part test laid out in Georgia. LSU is correct that, before the Court reaches the Constitutional issue of abrogation at the third step of the Georgia analysis, the first step requires the Court to determine “which aspects of the State's alleged conduct violated Title II”[40] in an analysis analogous to one under Rule 12(b)(6). Under Georgia step one, the Court finds Plaintiff has stated a claim under Title II as to both Counts of her Second Amended Complaint. Under the remaining steps, the Court finds Congress did not validly abrogate sovereign immunity as to LSU's alleged conduct.

         The Court then turns to Plaintiff's state law claims and remands them to state court.

         I. The State of Louisiana has not waived its sovereign immunity from liability with respect to Plaintiff's Title II claims.

         Plaintiff brings claims under Title II against Defendant LSU, an instrumentality of the State of Louisiana.[41] In its order of August 27, 2018, the Court ordered Plaintiff to address the issue of sovereign immunity.[42] In her Second Amended Complaint, Plaintiff states this case is not barred by sovereign immunity because it was removed from state court.[43]

         “Sovereign immunity consists of two separate and different kinds of immunity, immunity from suit and immunity from liability.”[44] A state may waive or “relinquish its immunity from suit while retaining its immunity from liability, or vice versa.”[45] When a state removes a case to federal court, it “voluntarily invoke[s] the jurisdiction of the federal courts and waive[s] its immunity from suit in federal court.”[46] Whether the state retains “a separate immunity from liability is an issue that must be decided according to that state's law.”[47] In this case, Defendant LSU removed this case from state court.[48] As a result, LSU has waived its immunity from suit in this Court.

         The Court turns to whether the State of Louisiana has waived immunity from liability for Plaintiff's claims under Title II of the ADA. The Court considers whether the State of Louisiana would have had immunity from liability if the Title II claim had been brought in state court.[49] Under Louisiana law, two provisions of the Louisiana constitution govern whether the state has waived sovereign immunity. Article 12, § 10(A) of the Louisiana Constitution provides the state is not “immune from suit and liability in contract or for injury to person or property.”[50] Article 1, § 26, states the people of Louisiana “have the sole and exclusive right of governing themselves as a free and sovereign state” and retain “every power, jurisdiction, and right” not delegated to Congress.[51] In light of these constitutional provisions, the Louisiana Supreme Court has held the State of Louisiana has not waived its sovereign immunity for claims under the Family Medical Leave Act.[52] The Louisiana Second Circuit Court of Appeal has held the State of Louisiana has not waived its sovereign immunity for claims under Title I of the ADA.[53]

         In Pace v. Bogalusa City Sch. Bd., a student challenged architectural barriers under the Rehabilitation Act (“RA”), the Individuals with Disabilities Education Act (“IDEA”), and Title II of the ADA.[54] The Fifth Circuit held Louisiana waived sovereign immunity under the RA and IDEA by accepting federal funding.[55] The Fifth Circuit did not rule on whether Louisiana waived sovereign immunity under Title II, but held it made no difference for challenges to architectural barriers.[56] In Covington v. McNeese State University, the Louisiana Third Circuit Court of Appeal relied on Pace and held, in a challenge to architectural barriers, that Louisiana waived its sovereign immunity under Title II.[57] Unlike in Pace and Covington, Pegues, does not challenge architectural barriers at LSU. This Court is confident the Louisiana Supreme Court would hold that, [58] under Louisiana law, the State of Louisiana has not waived its sovereign immunity for claims under Title II of the ADA not related to architectural barriers.

         II. Congress did not validly abrogate sovereign immunity for Plaintiff's Title II claims.

         Because Louisiana has not waived its sovereign immunity with respect to Plaintiff's Title II claims, the Court turns to whether Congress validly abrogated sovereign immunity for the claims. Congress may abrogate state sovereign immunity if it “makes its intention to abrogate unmistakably clear in the language of the statute” and “acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment.”[59] An abrogation of sovereign immunity under Section Five of the Fourteenth Amendment applies to suits in state court as well as federal court.[60]

         The ADA clearly states Congress's intent to abrogate state sovereign immunity.[61]In United States v. Georgia, the Supreme Court established a three-part test to determine whether, in a particular case, Title II's abrogation of state sovereign immunity pursuant to Section 5 of the Fourteenth Amendment is valid.[62] To make this determination, a court must consider on a claim-by-claim basis:

(1) which aspects of the State's alleged conduct violated Title II;
(2) to what extent such misconduct also violated the Fourteenth Amendment; and
(3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.[63]

         A. Count 1 states a claim for a Title II violation

         Plaintiff brings Count 1 of her Second Amended Complaint against LSU under Title II of the ADA, alleging LSU failed to accommodate her ADHD.[64] As the Fifth Circuit has explained:

A claim for failure to accommodate under the ADA has the following elements:
(1) the plaintiff is a qualified individual with a disability;
(2) the disability and its consequential limitations were known by the covered institution; and
(3) the covered institution failed to make reasonable accommodations for such known limitations.[65]

         1. Qualified Individual with a Disability

         With respect to the first element, Defendant argues Plaintiff has not sufficiently alleged she is a qualified individual with a disability.[66] The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[67] The statute specifies that “major life activities include, but are not limited to, . . . learning, reading, concentrating, thinking, [and] communicating.”[68]

         In her Second Amended Complaint, Plaintiff incorporates by reference the following allegations in her Amended Complaint:

[(1) Plaintiff] suffered from an adjustment disorder with mixed anxiety and depressed mood and Attention Deficit Hyperactivity Disorder (“ADHD”), which substantially limited her major life activities; and . . . [(2) Plaintiff's] health conditions substantially limited her major life activities relative to school-related tasks such as learning, reading, concentrating, thinking, and communicating. Due to her difficulty concentrating, her study time was less productive. She took longer to complete school-related tasks than she would if she had not been disabled, she frequently found it difficult to study for long periods of time, and had difficulty beginning and completing school-related tasks.[69]

         The Court finds Plaintiff has sufficiently alleged she had a disability under the ADA.

         Defendant argues that, because Plaintiff rejected a reasonable accommodation, she is not a qualified individual with a disability.[70] In support, Defendant cites cases under Title I of the ADA, which in turn quote the regulations implementing Title I for the proposition that if an individual with a disability “rejects a reasonable accommodation . . . necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.”[71] First, the regulations implementing Title I of the ADA do not apply directly to Title II. Second, although Plaintiff does allege she initially declined accommodations in October 2015 because she believed she did not need them, [72] she also alleges she subsequently requested accommodations in early 2016.[73]

         Defendant also argues that, because Plaintiff alleges other causes for her poor academic performance, including a death in the family, an unfair examination, and misgrading, her limitations were not attributable to her ADHD. Defendant cites no cases in support of the proposition that a plaintiff is not considered to have a disability merely because she alleges extraneous causes may have exacerbated the limitations caused by her disability. Plaintiff has alleged sufficient facts to allege she was a qualified individual with a disability under the ADA.

         2. Disability and Limitations Known by Institution

         Defendant argues Plaintiff did not allege she alerted LSU to her disability and limitations. Defendant cites Choi v. Univ. of Texas Health Sci. Ctr. at San Antonio, in which the plaintiff was a dental student diagnosed with Attention Deficit Disorder (“ADD”) who was dismissed from a dental school because of poor academic performance.[74] In Choi, the student informed the school of his ADD diagnosis for the first time during the dismissal process.[75] The Fifth Circuit affirmed the district court's dismissal of the student's ADA claims for failure to state a claim because the student “alleged insufficient facts to show that his disability and its consequential limitations were known by the Dental School.”[76] The Fifth Circuit stated, “it is incumbent upon the ADA plaintiff to assert not only a disability, but also any limitation resulting therefrom.”[77]

         In this case, Pegues alleges she notified the school of her ADHD upon learning of her diagnosis in October 2015, well before the beginning of her dismissal process.[78]Although Plaintiff alleges she initially declined testing accommodations, she also alleges that, in early 2016, she “discussed her potential need to be allowed extra time on examinations, due to her disability, with several of her professors, including Dr. Larry Bates (“Dr. Bates”), but was told that extra time would not be ‘necessary.'”[79] Defendant characterizes this is a “generic and bare allegation” and argues the allegation is insufficient under Rule 12(b)(6) because Plaintiff does not “identify[] (1) who she had such alleged discussions with or (2) when she had such discussions.”[80] Defendant also notes that Dr. Bates “is not alleged to have taught a course that [Plaintiff] failed.”[81]

         When ruling on a motion to dismiss, the Court accepts a true the facts alleged in the complaint and determines whether Plaintiff's claim to relief is plausible.[82] The Court accepts as true Plaintiff's allegation that she spoke to several professors about her need for extra time. Unlike the student in Choi, Plaintiff alleges she notified the school of her ADHD in October 2015, and she notified the school of the resulting limitations in early 2016, before her initial receipt of a dismissal letter in June 2016. Plaintiff need not specify the date of the alleged discussions or the people with whom she had them in order to make her claim plausible. The Court finds Plaintiff has sufficiently alleged that her ADHD and its resulting limitations were known by LSU.

         3. Failure to Make Reasonable Accommodations

         Defendant argues Plaintiff has not sufficiently alleged LSU failed to provide reasonable accommodations.[83] Plaintiff makes three distinct factual allegations relating to reasonable accommodations. First, Plaintiff alleges that, in November 2015, she declined LSU's offer of testing accommodations because she did not realize she needed accommodations.[84] Second, Plaintiff alleges that, in early 2016, she discussed her “potential need to be allowed extra time on examinations, due to her disability, with several of her professors, . . . but was told that extra time would not be ‘necessary.'”[85]Third, Plaintiff alleges that, on July 5, 2016, after being told she failed a course and receiving two letters of dismissal, she met with Deans Gremillion and Dr. Andrieu “regarding accommodations for her disability.”[86]

         With respect to the first allegation, because Plaintiff declined accommodations in November 2015, LSU cannot be liable for not providing accommodations at that time.

         With respect to the second allegation, the Court finds Plaintiff has sufficiently alleged LSU failed to provide her accommodations, despite her request. Defendant does not address this allegation in the instant motion.

         Defendant focuses its argument on the third allegation, arguing LSU “cannot be liable for failing to accommodate a student who had already failed multiple classes and had been notified of her dismissal.”[87] “[A] ‘second chance' or a plea for grace is not an accommodation as contemplated by the ADA.”[88] The Court agrees that, if Plaintiff alleged that the first time she requested accommodations was after being notified of her dismissal, LSU could not be liable for failing to accommodate her. However, because Plaintiff alleges she requested an accommodation in early 2016, before she was notified she failed a class and would be dismissed, Plaintiff has alleged sufficient facts to state a plausible claim that LSU failed to accommodate her disability.

         B. Count 2 states a claim for a Title II violation

         Plaintiff brings Count 2 against LSU for discrimination under Title II of the ADA.[89]In her Amended Complaint, she states Defendant “harassed the Plaintiff on the basis of her disability, retaliated against her, limited her educational opportunities, expelled her from the Dental School, and otherwise discriminated against her.”[90] Defendant argues she fails to state a claim for disability-based harassment or retaliation.[91] In response to the second motion to dismiss, Plaintiff represented she “has not asserted claims for retaliation or harassment.”[92] Instead, she states Count 2 is based only on “discriminatory expulsion from an academic institution in violation of Title II.”[93] To the extent Plaintiff brought claims in her complaint for harassment and retaliation, those claims are dismissed.

         Title II prohibits discrimination by public entities, including LSU.[94] Title II provides, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”[95] The Fifth Circuit has listed the elements of a Title II discrimination claim as follows:

To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.' To recover monetary damages, a plaintiff must prove that the discrimination was intentional.[96]
The Court has found Plaintiff has alleged she has a qualifying disability.

         In her Amended Complaint, Plaintiff alleges, “Defendant's expulsion was due to her ADHD and depression.”[97] In support, she cites several factual allegations. Plaintiff alleges her professor Dr. Luis Infante made her take an “on-the-spot oral quiz” that was not required of students without disabilities.[98] She also alleges Dr. Infante miscalculated her grade because of his “animosity toward her because of her disability.”[99] Plaintiff alleges Dean Toby Cheramie “berated” her and accused her of “making excuses” after she requested an accommodation. The Court finds these allegations are sufficient to state a claim that LSU intentionally discriminated against Plaintiff because of her disability.[100]

         C. The alleged Title II violations do not violate the Fourteenth Amendment.

         The alleged Title II violations in this case relate to LSU's alleged failure to accommodate Plaintiff's disability and its alleged discriminatory termination. The second prong of the Georgia test requires a court to determine the extent to which the state government entity's alleged violation of Title II of the ADA also violated the Fourteenth Amendment.[101] Section Five of the Fourteenth Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including the Equal Protection Clause and the Due Process Clause.[102] This permits Congress to create private remedies against the states for violations of the Fourteenth Amendment.[103] As a result, “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”[104]

         Under the Equal Protection Clause, “[d]isabled persons are not a suspect class.”[105]As a result, classifications on the basis of disability are subject to rational basis scrutiny, meaning they violate the Equal Protection Clause “if they lack a rational relationship to a legitimate governmental purpose.”[106] Plaintiff does not allege LSU subjected her to a classification on the basis of disability that lacked a rational relationship to a legitimate governmental purpose. As a result, LSU's alleged conduct does not violate the Equal Protection Clause.

         The Due Process Clause guarantees certain substantive fundamental rights, and a violation of Title II violates the Due Process Clause when it prevents people with disabilities from exercising those rights.[107] For example, when physical barriers prevent people with disabilities from exercising their fundamental right of access to the courts, an ADA violation also may violate the Due Process Clause.[108] However, “the Supreme Court has never before recognized access to public education or freedom from disability discrimination in education to be fundamental rights.”[109] As a result, no alleged Title II violation in this case constitutes a deprivation of a substantive fundamental right under the Due Process Clause.[110]

         The Due Process Clause also guarantees procedural protections against deprivations of life, liberty, or property.[111] Plaintiff argues she has a liberty interest and a property interest in her continuing education that is protected by the Due Process Clause.[112] The Supreme Court has held students have a protected interest in their ability to remain in school.[113] However, in Board of Curators of Univ. of Missouri v. Horowitz, the Court has held there is a “significant difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. This difference calls for far less stringent procedural requirements in the case of an academic dismissal.”[114] The plaintiff in that case was dismissed from medical school for academic reasons. The Court held a hearing was not necessary and explained:

Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full-hearing requirement. . . . The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.
Under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by requiring a hearing.[115]

         In this case, Plaintiff argues her dismissal was partially disciplinary in nature and that she was not provided sufficient process in connection with her dismissal.[116] She argues the Court should infer that her dismissal not based on her failing a course, but rather “a result of some other aspect of her behavior or personality.”[117] Nowhere in her petition does she allege any disciplinary violation that led to her dismissal. In contrast, she makes numerous factual allegations that the stated reason for her dismissal was academic.[118] The Court finds Plaintiff has not stated sufficient facts to allege her dismissal was disciplinary in nature. Because Plaintiff's dismissal was academic, based on the facts alleged in the Second Amended Complaint, no hearing was required. LSU's alleged Title II violation does not constitute a deprivation of Plaintiff's procedural due process rights. The Court finds no Fourteenth Amendment violation and proceeds to the third prong of the Georgia analysis.

         D. The alleged Title II violations do not implicate the Fourteenth Amendment.

         Courts reach the third prong of the Georgia test on summary judgment only in cases in which there is a genuine issue of material fact as to whether a defendant's conduct violated Title II of the ADA, but the alleged conduct did not violate the Fourteenth Amendment.[119] As a result, in this case, the Court must consider whether, as to the alleged conduct, Title II of the ADA was a valid exercise of Congressional authority under Section Five of the Fourteenth Amendment.[120] In City of Boerne v. Flores, the Supreme Court held that, in order for Congress to exercise its enforcement power under Section Five, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”[121] Even if Congress proscribes conduct that does not directly violate the Fourteenth Amendment, legislation is a valid exercise of Congressional power under Section Five if this “congruence and proportionality” test is satisfied.[122] If Title ...


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