Patton v. Phoenix School of Law LLC

Filing 20

ORDER denying 8 Plaintiff's Motion for Preliminary Injunction Hearing and Motion to Expedite the Preliminary Injunction; denying 9 Plaintiff's Motion to Appoint Pro Bono Counsel; denying 10 Plaintiff's Motion to Allow Electronic Filing and denying 11 Plaintiff's Motion/Request for Order to Show Cause. Signed by Judge G Murray Snow on 5/20/11.(LSP)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angela Patton, Plaintiff, 10 11 vs. 12 Phoenix School of Law LLC, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-0748-PHX-GMS ORDER 15 16 Pending before the Court are the following motions filed by Plaintiff Angela Patton: 17 (1) Motion for Preliminary Injunction Hearing and Motion to Expedite (Doc. 8); (2) Motion 18 to Appoint Pro Bono Counsel (Doc. 9); (3) Motion to Allow Electronic Filing (Doc. 10); and 19 (4) Motion for Order to Show Cause (Doc. 11). For the following reasons, Plaintiff’s motions 20 are denied. 21 BACKGROUND 22 Plaintiff’s Complaint, filed in state court, alleges the following. (Doc. 1, Ex. 4). Patton 23 began her studies at the Phoenix School of Law in Fall 2009. After her third semester, 24 Plaintiff was dismissed for failure to attain a cumulative G.P.A. of 2.0. According to the 25 student handbook, Plaintiff had the right to appeal the decision, and she did so. While 26 preparing for the appeal, Plaintiff met with a psychologist, who determined that she had 27 severe ADHD with a moderate weakness in Verbal/Auditory Working Memory, and Non28 1 Verbal Visual Spatial Relations. 2 Plaintiff provided the psychologist’s report to Defendant along with her second 3 Petition for Reinstatement on January 21, 2011.1 (Doc. 16, Ex. 14). Plaintiff requested that 4 Defendant permit her to utilize the accommodations recommended in that report, including 5 “extra time on examinations, private room to take her exam, medication, and a note taker if 6 need arises.” (Doc. 1, Ex. 4). Defendant agreed to rehear Plaintiff’s request for reinstatement, 7 in light of the new information. After reviewing this information, Defendant informed 8 Plaintiff that her second petition for reinstatement was denied. (Doc. 16, Ex. 14). 9 This appears to have been Plaintiff’s second dismissal from Phoenix School of Law. 10 Defendant asserts, and Plaintiff does not deny, that she was placed on academic probation 11 after her first semester of law school for failure to maintain a G.P.A. of at least 2.00. (Doc. 12 16, Ex. 8). After the second semester, Plaintiff was dismissed for the first time, again for 13 failure to attain a cumulative G.P.A. of 2.0 while on probation. (Doc. 6; 16, Ex. 9). Plaintiff 14 petitioned for reinstatement and explained that a loss in the family had been the source of her 15 academic problems during her first year. (Doc. 16, Ex. 9). She was reinstated under special 16 conditions, including that she must attain the required 2.0 cumulative G.P.A. after the fall 17 2010 semester (her third semester) or she would be academically dismissed. (Doc. 16). 18 Plaintiff earned a 1.69 G.P.A. for that third semester, and therefore was academically 19 dismissed. (Doc. 16, Ex. 12). 20 On January 31, 2011, Plaintiff filed a motion for a temporary restraining order and 21 preliminary injunction in state court, requesting that Defendant be restrained from 22 academically dismissing her from law school. (Doc. 1, Ex. 1). She alleged that although 23 Defendant acknowledged that the evidence of an ADHD diagnosis demonstrated that she was 24 25 26 27 28 1 Plaintiff’s initial Petition for Reinstatement was submitted to the school on January 11, 2011, and stated that she was “writing to request reinstatement after being academically dismissed.” (Doc. 16, Ex. 6). In that petition, she stated that her grades were due to “extenuating circumstances” involving her mother’s poor health and death later in the semester. -2- 1 “substantially hindered”, her petition was nevertheless denied. According to Plaintiff, 2 Defendant explained that “since the Student Handbook Policy only grants one semester to 3 be removed from academic probation status, . . . defendant felt it would be ‘too severe of a 4 burden’ on a student who is on academic probation.” (Id.). In other words, Defendant 5 determined, in its experience, that Plaintiff would not be able to earn a semester G.P.A. high 6 enough to attain the required cumulative G.P.A. of 2.0 in just one semester. 7 Plaintiff asserted that Defendant violated the Americans with Disabilities Act 8 (“ADA”), 42 U.S.C. § 12101 et. seq., by not offering her reasonable accommodations for her 9 disability–ADHD. Plaintiff stated that she would suffer irreparable harm if Defendant was 10 permitted to dismiss her because she relies on her financial aid funds for everyday living. 11 Without her financial aid funds, Plaintiff may not be able to pay her bills, which will 12 adversely affect her credit for the next 7-10 years. The state court denied Plaintiff’s Request 13 for a Temporary Restraining Order, concluding that Plaintiff’s situation is “unfortunate, but 14 [the circumstances] are not of sufficient urgency to require consideration without opportunity 15 for the Defendant to be heard.” (Doc. 1, Ex. 3). 16 Plaintiff subsequently filed a Complaint and Request for Preliminary Injunction. (Doc. 17 1, Ex. 4). Plaintiff again asserted that Defendant discriminated against her in violation of the 18 ADA by failing to grant her request “for reasonable accommodations that would have 19 allowed Plaintiff to continue attending [Phoenix School of Law].” (Id.). Plaintiff argued that 20 Phoenix School of Law was required under the ADA to engage in an interactive process with 21 Plaintiff once it was on notice of her disability. Defendant’s failure to accommodate Plaintiff 22 “resulted in her being excluded, denied services, and treated differently than similarly 23 situated students without her disability.” (Id.). 24 After this case was removed from state court, Plaintiff filed the abovementioned 25 motions. (Doc. 8–11). Plaintiff has moved for an expedited hearing on her motion for 26 preliminary injunction “so that she might be able to register for classes immediately before 27 the next session begins”. (Doc. 8). 28 -3- 1 DISCUSSION 2 I. Legal Standard 3 A preliminary injunction is “an extraordinary remedy never awarded as of right.” 4 Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 376 (2008). “A plaintiff seeking a 5 preliminary injunction must establish that he is likely to succeed on the merits, that he is 6 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 7 equities tips in his favor, and that an injunction is in the public interest.” Id. at 374. All four 8 factors must be satisfied for the Court to grant a preliminary injunction. Alliance for the Wild 9 Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). Defendant asserts that Plaintiff is 10 unable to establish a likelihood of success on the merits of her ADA claim, and therefore, the 11 Court should deny the preliminary injunction. (Doc. 16). At the preliminary injunction stage, 12 Plaintiff has the burden of proof. Preminger v. Principi, 422 F.3d 815, 823 n.5 (9th Cir. 13 2005). 14 II. Likelihood of Success on Merits 15 Plaintiff contends that Phoenix School of Law has discriminated against her in 16 violation of the ADA because of her disability–ADHD. (Doc. 1, Ex. 4). To be granted a 17 preliminary injunction, Plaintiff must show that she is likely to succeed on the merits of this 18 claim. “The ADA prohibits discrimination by public entities against qualified individuals 19 with a disability.” Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005) 20 (citing 42 U.S.C. § 12131-12132). Thus, to establish a prima facie case of discrimination 21 based upon her disability in violation of the ADA, Plaintiff must produce evidence that: (1) 22 she is “disabled” as defined by the ADA; (2) she is qualified to remain a student at Phoenix 23 School of Law, “meaning that [she] can meet the essential eligibility requirements of the 24 school with or without reasonable accommodation”; (3) she “‘was dismissed solely because 25 of [her] disability’”; and (4) the school is a public entity. Wong v. Regents of Univ. of Cal., 26 192 F.3d 807, 816 (9th Cir. 1999) (quoting Zukle v. Regents of the Univ. of Cal., 166 F.3d 27 1041, 1045 (9th Cir. 1999)). If a plaintiff alleges a failure to accommodate, “part of the 28 plaintiff’s initial burden includes ‘showing the existence of a reasonable accommodation.’” -4- 1 Zukle, 166 F.3d at 1046 (quoting Barnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir. 1998)). 2 Defendant concedes that element four is met, but contends that Plaintiff has not met her 3 burden with regard to the remaining elements. (Doc. 16). 4 To make out a discrimination claim under the ADA, Plaintiff must show that 5 Defendant was aware of her disability. See Collings v. Longview Fibre Co., 63 F.3d 828, 834 6 (9th Cir. 1995). Yet, Defendant could not have been aware of Plaintiff’s disability–assuming 7 Plaintiff’s ADHD constitutes a disability under the ADA–when it dismissed her for the 8 second time because Plaintiff was not tested for the condition until after she was dismissed. 9 (Doc. 1, Ex. 4). As for Defendant’s decision to deny Plaintiff’s request for reinstatement, 10 Defendant stated in its letter that “reinstatement gives a student only one semester to attain 11 a cumulative GPA of 2.0. In that one semester, [Plaintiff] would have to achieve a semester 12 GPA of at least 2.60 if [she] took 15 hours (fewer hours would require an even higher GPA). 13 That would be an increase of almost a full grade point (+0.91) over [her] last semester GPA 14 (1.69).” (Doc. 15, Ex. 1). Defendant explained that in the school’s experience, that great of 15 an increase in G.P.A. constitutes too high of a burden for a student to successfully complete 16 academic probation. Thus, Defendant provided a non-discriminatory explanation for its 17 decision to deny readmission and accommodations, and Plaintiff has failed to meet her 18 burden of demonstrating that she is likely to succeed on this point. 19 Plaintiff simply asserts that Defendant did not grant her any accommodations and 20 failed to specifically explain the reason for the denial. Plaintiff also alleges that Defendant 21 has “allowed other students without an ADHD disability more than one semester to achieve 22 the cumulative grade point average necessary to be in good academic standing.” (Doc. 11). 23 The only evidence before the Court that Defendant has allowed other students more than one 24 semester to improve their G.P.A. is Plaintiff’s case. She was dismissed at the end of her first 25 year of law school, but was allowed to return for one semester, under certain conditions, after 26 she informed the law school that her poor performance was due to a death in the family. 27 (Doc. 16). The fact that Defendant decided to give Plaintiff consideration following the death 28 of her grandmother when Plaintiff insisted that her performance was due to that family -5- 1 situation, does not establish that Defendant discriminated against her solely based on her 2 disability. Plaintiff’s G.P.A. dropped considerably after her third semester, and that, 3 combined with the fact that Plaintiff was halfway through law school and still unable to 4 maintain the necessary 2.0 cumulative G.P.A., demonstrates a non-discriminatory reason for 5 denying her second petition for reinstatement on rehearing. Plaintiff has not presented any 6 evidence to suggest that Defendant’s actions were a pretext for disability discrimination. Cf. 7 Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) (explaining that if an employer 8 articulates a legitimate, nondiscriminatory reason for its action, the presumption of 9 intentional discrimination disappears, “but the plaintiff can still prove disparate treatment by, 10 for instance, offering evidence demonstrating that the employer’s explanation is pretextual”). 11 Injunctive relief shall not be granted “‘unless the movant, by a clear showing, carries the 12 burden of persuasion’” of showing a likelihood of success on the merits. Mazurek v. 13 Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. WRIGHT, A. MILLER & M. KANE, 14 FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)). Plaintiff simply has not met that 15 burden as to her claim of discrimination based on her disability. 16 An educational institution’s “failure to make reasonable modifications in policies, 17 practices, or procedures, when such modifications are necessary” to offer that institution’s 18 services to a disabled individual may constitute discrimination under the ADA. 42 U.S.C. § 19 12182(b)(2)(A)(ii). In such cases, the plaintiff has the initial burden of “‘showing the 20 existence of a reasonable accommodation.’” Zukle, 166 F.3d at 1046 (quoting Barnett, 157 21 F.3d at 749). If a plaintiff-student is able to meet the initial burden, then the burden shifts to 22 the educational institution. Id. at 1047. The school may meet its burden “by producing 23 evidence that the requested accommodations, regardless of whether they are reasonable, 24 would not enable the student to meets its academic standards.” Id. In the alternative, the 25 institution may demonstrate that the “requested accommodations would require a 26 fundamental or substantial modification of its program or standards.” Id. Federal courts have 27 generally extended deference to an educational institution’s academic decisions in ADA 28 cases, though this deference is not “absolute.” Wong, 192 F.3d at 817. Specifically, the Ninth -6- 1 Circuit has held that although “the ultimate determination of whether an individual is 2 otherwise qualified must be made by the court, we will extend judicial deference ‘to the 3 evaluation made by the institution itself, absent proof that its standards and its application 4 of them serve no purpose other than to deny an education to handicapped persons.’” Zukle, 5 166 F.3d at 1047–48 (quoting Doe v. N.Y. Univ., 666 F.2d 761, 776 (2d Cir. 1981), 6 superceded by rule in part on other grounds as recognized in Zervos v. Verizon N.Y., Inc., 7 252 F.3d 163, 171 n.7 (2d Cir. 2001)). 8 Under the ADA, an educational institution’s “obligation to engage in an interactive 9 process with the [student] to find a reasonable accommodation is triggered by [the student] 10 giving notice of the [] disability and the desire for accommodation.” Downey v. Crowley 11 Marine Servs., Inc., 236 F.3d 1019, 1023 n.6 (9th Cir. 2001) (internal quotation marks 12 omitted). In Zukle, the Ninth Circuit reiterated that in determining the reasonableness of a 13 request for accommodations, courts may consider the timing of the request for 14 accommodations. 166 F.3d at 1051 n.16. Specifically, the fact that a request for 15 accommodations was made only after an educational institution’s dismissal of a student may 16 contribute to a finding of unreasonableness. Id. (citing Wynne v. Tufts Univ. Sch. of Med., 17 976 F.2d 791, 796 n.3 (1st Cir. 1992) (Wynne II) (“finding relevant to reasonableness inquiry 18 the fact that student did not ask for accommodation ‘until after [the school] sent him packing 19 and adversary proceedings were underway’”)). 20 Plaintiff relies on Singh v. George Washington Univ. Sch. of Med. & Health, 508 F.3d 21 1097 (D.C. Cir. 2007), to argue that so long as Defendant was still “in a position to respond”, 22 its failure to accommodate her constitutes a violation of the ADA. (Doc. 1, Ex. 5). She asserts 23 that because Phoenix School of Law agreed to consider her second petition for reinstatement, 24 the school necessarily was in a “position to respond.” (Id.). In Singh, the plaintiff notified the 25 university of her disability after a “faculty committee had already recommended her 26 dismissal”, but before the dean of the school had dismissed her. 508 F.3d at 1105 (noting that 27 the court “need not address the case of the plaintiff who, once ousted on terms applicable to 28 a non-disabled person, knocks on the door anew to seek reinstatement under the ADA”). -7- 1 Thus, at the time of the student’s request for accommodations, she was still an enrolled 2 student. The facts of this case are more comparable to those in Zukle and Wynne II than those 3 presented in Singh. After Plaintiff was reinstated in the summer of 2010, Defendant enrolled 4 Plaintiff in the Academic Success Program and required her to meet with an Academic 5 Success counselor to create “a detailed plan for academic improvement.” (Doc. 16, Ex. 11). 6 Thus, it appears that Defendant attempted to provide Plaintiff with access to additional 7 resources and programs that would help her succeed. Nevertheless, Plaintiff’s semester 8 G.P.A. dropped to a 1.69 after her third semester. Plaintiff did not get tested for a disability 9 until after she had been dismissed from Phoenix School of Law for the second time and her 10 petition for reinstatement had been denied. The fact that Plaintiff requested accommodations 11 only after she failed to attain the necessary G.P.A. for three semesters in a row–which, to 12 Defendant’s knowledge, Plaintiff attributed to having to deal with the deaths of several 13 family members–and after she was dismissed a second time would support a finding of 14 unreasonableness. Plaintiff has not demonstrated by a clear showing that she is likely to 15 succeed on the merits of her claim that Defendant had a duty to accommodate her under these 16 circumstances. 17 IT IS THEREFORE ORDERED that: 18 1. 19 Plaintiff’s Motion for Preliminary Injunction Hearing and Motion to Expedite the Preliminary Injunction (Doc. 8) is DENIED; 20 2. Plaintiff’s Motion to Appoint Pro Bono Counsel (Doc. 9) is DENIED; 21 3. Plaintiff’s Motion to Allow Electronic Filing (Doc. 10) is DENIED; 22 4. Plaintiff’s Request for Order to Show Cause (Doc. 11) is DENIED.2 23 DATED this 20th day of May, 2011. 24 25 26 2 27 28 Plaintiff filed a Request for Preliminary Injunction (Doc. 1, Ex. 4) in state court before the case was removed. The Court is ruling on that request in conjunction with the above motions. -8-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?