Gerald Jeandron v. Board of Regent

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:11-cv-02496-RWT. Copies to all parties and the district court/agency. [999043963]. [12-1724]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1724

GERALD JEANDRON,
Plaintiff – Appellant,
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND;
UNIVERSITY SYSTEM OF MARYLAND; UNIVERSITY OF MARYLAND;
WALLACE D. LOH, Ph.D., in his official capacity as
President of the University of Maryland, College Park;
SALLY S. SIMPSON, Ph.D., Individually, and in her official
capacity as Department Chair; RAYMOND PATERNOSTER, Ph.D.,
Individually,
and
in
his
capacity
as
Professor
of
Criminology and Criminal Justice,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:11-cv-02496-RWT)

Submitted:

January 31, 2013

Decided:

February 14, 2013

Before SHEDD, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frederick B. Goldberg, FRED B. GOLDBERG, PC, Bethesda, Maryland;
Mark L. Rosenberg, LAW OFFICES OF MARK L. ROSENBERG, Bethesda,
Maryland, for Appellant.
Douglas F. Gansler, Attorney General
of Maryland, Sally L. Swann, Assistant Attorney General, Holly

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Elizabeth Combe,
Appellees.

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Staff

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Attorney,

Baltimore,

Maryland,

for

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald Jeandron filed an action against the Board of
Regents of the University System of Maryland; the University of
Maryland
President

at

College

Loh

in

Park

his

(UMCP);

official

University

Maryland

Sally

capacity;

of

Simpson,

Department of Criminology and Criminal Justice Chair, in her
official

and

individual

capacity;

and

Raymond

Paternoster,

Professor of Criminology and Criminal Justice, in his individual
and

official

complaint:

capacity.

count

Disabilities

Jeandron
violation

one,

Act

raised
of

(ADA);

count

four
the

two,

counts

in

Americans

violation

his
with

of

the

Rehabilitation Act; count three, breach of contract; and count
four, tortious conspiracy to breach contract.
Jeandron
Jeandron

was

is

blind

previously

and

is

accepted

disabled

into

the

under

the

graduate

ADA.

studies

program of the Department of Criminology and Criminal Justice
Studies (CCJS).

In 2007, he filed an action under the ADA and

the Rehabilitation Act alleging discrimination against him by
University of Maryland and other named defendants.

The parties

settled the lawsuit by written agreement entered on June 20,
2007.

The agreement provided $250,000 to Jeandron for him to

purchase

and

provide

all

accommodations

to

assist

him

in

completing his program to obtain a Ph.D.

The agreement also

specified

to

that

Jeandron

was

still
3

subject

all

the

rules,

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procedures, and practices of the University of Maryland System,
including, but not limited to, time limitations for completing
his degree and rules pertaining to satisfactory progress toward
his degree.
After
continued
served

to

as

executing

pursue

his

Jeandron’s

the

settlement

doctorate

at

agreement,
Dr.

advisor.

In

dissertation

UMCP.

Jeandron

Paternoster
July

2008,

Jeandron attempted to register for Fall 2008 classes but was
unable to due to a “financial hold” on his account.

Later, but

prior to September 8, 2008, Jeandron alleges that he could not
register

for

classes

because

the

“academic hold” on his account.

University

had

placed

an

On September 10, 2008, Dr.

Denise Gottfredson, former graduate director of CCJS at UMCP,
emailed Jeandron to confirm that the University had previously
dismissed him from the CCJS graduate program.

On September 7,

2011, Jeandron filed the subject lawsuit.
The Defendants filed a motion to dismiss or, in the
alternative, for summary judgment.
Jeandron’s

action

is

barred

by

The Defendants alleged that
the

three-year

statute

of

limitations because various documents were sent to Jeandron in
2007 and early 2008 regarding his failure to progress and his
termination

from

the

program.

On

December

18,

2007,

Dr.

Gottfredson sent Jeandron a letter at his home address advising
him

that

his

progress

was

unsatisfactory
4

because

he

had

not

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submitted three chapters of his dissertation to his advisor.
The letter also referred to a May 29, 2007 letter that advised
Jeandron

that

satisfactory
semester

and

he
and

had

not

timely

that,

if

met

the

progress
he

department’s
for

continued

a
to

standards

second

for

consecutive

perform

below

the

standard, he would be dismissed from the CCJS graduate program.
The letter concluded that “[i]f we do not hear from you on or
before Tuesday, January 8, 2008, this letter stands as notice of
the department’s decision to terminate your enrollment in the
CCJS Ph.D. Program.”
On

January

8,

2008,

Dr.

Gottfredson

sent

another

letter to Jeandron, by certified mail to his home address.

The

letter informed Jeandron that his enrollment in the program was
terminated at the close of the Fall 2007 semester.

Lillian

Bradley confirmed receipt of the letter by signing for it on
January 10, 2008. 1

On February 1, 2008, the Assistant Dean sent

a letter to Jeandron at his home address stating that Jeandron
had been terminated as a graduate student of UMCP due to his
“failure to complete the requirements essential to the degree
. . . .”
All the Defendants moved to dismiss the complaint in
its entirety based on the statute of limitations, or in the
1

Jeandron lived in an apartment building with a mailroom.

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alternative for summary judgment as a matter of law.

Jeandron

opposed the motion and contended that he did not receive any of
the letters from the University from December 2007 forward.

He

claims that he was first on notice that he was terminated from
the program on September 8, 2008, when he received an email
after the academic hold was placed on his account in July 2008.
The district court held a hearing on the motion to
dismiss or, in the alternative, for summary judgment.

The court

heard from counsel and considered the motion and response and
the materials, including Jeandron’s affidavit claiming not to
have received notice of termination until September 8, 2008.
The district court concluded that all the claims were barred by
the statute of limitations.

The court relied on evidence that a

letter

of

informing

Jeandron

his

termination

was

sent

by

certified mail and that the return receipt was signed for by a
person

identified

as

Lillian

Bradley,

and

that

there

was

no

requirement to send the letter by restricted delivery (unlike
service of process requirements). 2

The court found letters were

also sent on December 18, 2007, January 8, 2008, and February 1,
2008.

2

The district court mistakenly identified the certified
letter as sent on December 18, 2007.
The certified letter was
sent
on
January
8,
2008.
The
mistake,
however,
is
inconsequential.

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The court also considered the University’s published
requirements for obtaining a Ph.D., which were not in the record
before the hearing, but which the court included as part of its
ruling.

The University had a continuous enrollment requirement

that graduate students must register for continuing courses in
the Fall and Spring, unless a waiver is given.

The court found

that the notices were given “in the ordinary manner” and that
there is no requirement to prove actual receipt.

The court went

on to hold that a reasonably alert Ph.D. candidate would be on
notice given the academic hold and the presumed knowledge of the
continuous registration requirements.

The court relied on the

multiple notifications to conclude that the entire complaint was
barred by the statute of limitations.
This court reviews de novo the district court’s order
granting

a

Fed.

R.

Civ.

P.

12(b)(6)

motion

to

dismiss.

Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 179-80 (4th
Cir. 2009).

This court has stated:

[A] Rule 12(b)(6) motion should only be granted if,
after accepting all well-pleaded allegations in the
plaintiff’s
complaint
as
true
and
drawing
all
reasonable factual inferences from those facts in the
plaintiff’s
favor,
it
appears
certain
that
the
plaintiff cannot plead any set of facts in support of
his claim entitling him to relief.
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999).

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The court reviews de novo a district court’s order
granting summary judgment.
G.D.F.,

Inc.,

211

F.3d

Providence Square Assocs., L.L.C. v.

846,

850

(4th

Cir.

2000).

Summary

judgment should be granted “if the movant shows that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a).

unless

“[T]here

is

no

issue

for

trial

there

is

sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.

If the evidence is merely

colorable, or is not significantly probative, summary judgment”
is

proper.

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

249-50 (1986) (citations omitted).
The

ADA

and

statute of limitations.

Rehabilitation

Act

do

not

provide

a

Accordingly, courts “borrow” the most

appropriate or analogous state statute of limitations and apply
it to the federal cause of action.

See A Soc’y Without A Name

v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011), cert. denied,
132 S. Ct. 1960 (2012).

Maryland courts apply the three-year

limitations period governing general civil actions to ADA and
Rehabilitation Act claims.

Schalk v. Associated Anesthesiology

Practice, 316 F. Supp. 2d 244, 251 (D. Md. 2004); Kohler v.
Shenasky, 914 F. Supp. 1206, 1211 (D. Md. 1995).

The remaining

counts

the

of

Jeandron’s

complaint

fall

under

Maryland

three-year statute of limitations for general civil actions as
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well.

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See Md. Cts. & Jud. Proc. Code Ann. § 5-101; Hartnett v.

Schering Corp., 2 F.3d 90, 92 (4th Cir. 1993); Shailendra Kumar,
P.A.

v.

Dhanda,

43

A.3d

1029,

1033–34

(2012)

(applying

the

three-year statute of limitations to a breach of contract).
A cause of action for discrimination cases accrues on
the date that the alleged unlawful conduct occurred.
Southwestern
1998).

Virginia

The

Gas

unlawful

Co.,

135

practice

F.3d

occurs

307,

when

Martin v.

310

the

(4th

Cir.

plaintiff

is

informed of the allegedly discriminatory practice or decision.
Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980).

For

the state tort claims, under Maryland’s general discovery rule,
the

statute

of

limitations

begins

to

run

when

the

allegedly

tortious conduct is discovered — that is, when the plaintiff “in
fact

knew

Pennwalt

or
Corp.

reasonably
v.

should

Nasios,

have

550

A.2d

known
1155,

of

the

1160

wrong.”

(Md.

1988)

(quoting Poffenberger v. Risser, 431 A.2d 677, 680 (Md. 1981)
(applying

the

discovery

rule

to

all

tort

claims)).

Actual

knowledge, either express or implied, is required to find that a
tort

was

discovered

within

Poffenberger, 431 A.2d at 681.

the

meaning

of

the

rule.

Because implied actual knowledge

is sufficient to start the limitations period, courts consider
the three years to begin when a plaintiff is on inquiry notice.
Inquiry

notice

arises

“when

a

9

plaintiff

gains

knowledge

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sufficient to prompt a reasonable person to inquire further.”
Pennwalt, 550 A.2d at 1163.
It

is

Gottfredson’s
Jeandron’s

undisputed

letter

of

address.

that,

January

Further,

at
8,

the
2008,

Jeandron

very

least,

Dr.

was

received

at

should

have

been

on

notice that he was terminated if he had attempted to register
for Spring 2008 courses, which he was required to do under the
settlement agreement and under University policies.
register,

even

requirement

though

of

he

was

continuous

on

notice

progress

of

and

furtherance of a graduate student’s degree.

He did not

the

University’s

registration

in

Accordingly, the

district court concluded that Jeandron was on inquiry notice
before

the

Spring

2008

semester

and

that

a

reasonable

investigation undertaken at the time would have revealed his
termination from the program.
On

appeal,

Jeandron

assigns

error

to

the

district

court’s consideration of the continuous enrollment requirement
that the court found on the University’s web site.
included

the

materials

it

considered

in

its

order.

The court
At

the

hearing, the court discussed with both parties the information
it found on the University’s policy, although that policy itself
had not previously been made part of the record by either party.
A

court

may

take

judicial

notice

of

information

publicly

announced on a party’s web site, so long as the web site’s
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authenticity is not in dispute and “it is capable of accurate
and ready determination.”

Fed. R. Evid. 201(b); see O’Toole v.

Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)
(holding that it is not uncommon for courts to take judicial
notice of factual information found on the world wide web”).
Jeandron did not lodge an objection at the hearing to
the court’s consideration of the University policy found on the
University’s

web

site,

except

to

follows the policy is hearsay.

say

whether

the

University

Further, counsel admitted that

Jeandron was aware of the requirement discussed in the materials
and

considered

by

the

The

agreement.

There is no disagreement over the accuracy of the
that

the

noted

district

in

the

progress

is

information

specifically

satisfactory

requirement

factual

also

court.

court

settlement

relied

upon.

Granting broad deference to the district court and reviewing for
an

abuse

of

discretion,

the

district

consideration of the materials.

court

did

not

err

in

See United States v. Myers, 280

F.3d 407, 413 (4th Cir. 2002) (the district court’s admission of
evidence must be reviewed with broad deference); United States
v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (the district
court's

decision

to

admit

evidence

will

be

overturned

only

“under the most extraordinary of circumstances.”).
Jeandron
court’s

reliance

also
on

the

raises

judicial

continuous
11

bias

related

registration

to

the

requirement.

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Jeandron argues that the court’s consideration and reliance on
the requirement led it to accuse Jeandron of being unreasonable
and the court inappropriately blamed him for not receiving the
termination

letters.

Jeandron

contends

that

the

court

predetermined the outcome of the case and denied him a fair
hearing.

This claim is patently without merit.

“[J]udicial

rulings alone almost never constitute a valid basis for a bias
or partiality motion.”
555 (1994).

Liteky v. United States, 510 U.S. 540,

Moreover, even in the context of a jury trial,

judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do
not support a bias or partiality charge. They may do
so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible.
Id..

The

continuous

registration

requirement

was

properly

admitted, as discussed above, and even if it were considered an
extra-judicial

source,

Jeandron

has

not

established

that

the

court’s conduct during the course of the hearing was so highly
antagonistic “as to make fair judgment impossible.”

Liteky, 510

U.S. at 556.
Lastly, Jeandron argues that the court erred in ruling
under either Rule 12(b)(6) or Rule 56 that he had receipt of the

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letters sent by the Defendants. 3

Jeandron argues that had the

court accepted as true his claims under Rule 12(b)(6), the court
should have found that his claim was timely filed.

Under Rule

56, Jeandron claims that there is a factual dispute as to his
receipt

of

the

2007

and

2008

letters,

and

therefore

summary

judgment is improper.

A self-serving affidavit, without more,

is

defeat

not

sufficient

to

summary

judgment.

See

Nat’l

Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000).
We conclude, however, that the court’s decision may be affirmed
on the basis of reasonable inquiry alone, and therefore, even
had there been a factual dispute as to actual receipt of the
letters of termination from the graduate program, it did not
affect the statute of limitations issue.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

3

It is unclear whether the court dismissed under Rule
12(b)(6) or granted summary judgment under Rule 56.
The court
stated that it was granting the Defendants’ motion to dismiss
and/or for summary judgment.

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