Stebbins v. University of Arkansas et al
MEMORANDUM OPINION. Signed by Honorable Jimm Larry Hendren on December 28, 2012. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 10-5125
UNIVERSITY OF ARKANSAS, and
G. DAVID GEARHART, in his
Official Capacity as Chancellor
of the University of Arkansas,
On December 3-4, 2012, the captioned matter came on for trial
to the Court. Plaintiff appeared and represented himself. Defendants
represented by counsel.
The Court received documentary evidence and
heard testimony and the arguments of counsel, and now makes the
following findings of fact and conclusions of law.
Plaintiff David Stebbins contends that the University of
Arkansas ("UA") discriminated against him, in violation of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), by failing
in 2010 to allow him to re-enroll as a student after he was banned
from campus in 2007.
Stebbins contends that he has a disability -
Asperger's Syndrome - and that UA made no attempt to accommodate this
He seeks money damages and injunctive relief.
Stebbins also asserted claims that his First Amendment
rights were violated by UA Chancellor David Gearhart, and that he was
subjected to employment discrimination by UA.
These claims were
dismissed before trial, as lacking merit, and will not be addressed
in this opinion.
FINDINGS OF FACT
Stebbins enrolled in UA as an undergraduate in August,
In connection with his enrollment, on August 14, 2007, he
registered with UA's Center for Education Access ("CEA"), which
facilitates the college experience for students with disabilities.
In his Registration Form, Stebbins stated "I have Asperger's, a mild
form of Autism, making it difficult to find people who put up with
Stebbins indicated that the accommodation he sought
was "help negotiating my tactlessness w/my professors."
A summary of Stebbins' registration meeting stated "Requested
accommodations (none at this time but he feels he may need services
in the future)."
because he had lost his room key and his cell phone, and had problems
with the bookstore and with his bank account.
At that time the CEA
had not received documentation of Stebbins' disability.
disability from Vista Health Counseling Center in Harrison, Arkansas,
on September 24, 2007.
The Vista Health chart reflects diagnoses of
Intermittent Explosive Disorder ("IED"), Asperger's Disorder, and
Panic Disorder without Agoraphobia.
The most recent chart note,
dated April 10, 2007, reported that Stebbins' mother said he was
frequently verbally aggressive, and sometimes physically aggressive.
This note also reported that Stebbins had made no progress towards
his treatment plan goals and blamed his anger on others.
notes reflect that Stebbins tended to externalize blame and was
unable to consider the feelings of others.
interaction, but not by violence.
In her experience, students with
Asperger's Syndrome do not make threats or use profanity.
characterized by explosive outbursts of anger and both verbal and
physical aggression, usually not premeditated.
Panic Disorder is
characterized by extreme fear and tremendous anxiety.
Based on the Vista Health documentation, on September 24,
2007, the CEA accommodated Stebbins with preferential seating at the
front of his classes and permission to use a laptop computer in class
with the internet disabled.
However, even if he had, Jannarone testified that such
conduct rises to the level of a conduct violation under the Code of
Student Life, and it would not be reasonable to accommodate it.
testified that UA does not provide unreasonable accommodations.
Stebbins met with Jannarone on October 11, 2007, regarding
a lost book and problems with following his instructors in class.
Jannarone approved an additional accommodation -- permission to
record class lectures.
On October 12, 2007, an incident occurred in Stebbins'
Debbie Hudson, who worked the front desk and handed out
mail, had been asked to deliver mail to several other dorms because
the dorms were shorthanded.
Hudson put up a sign saying she would
be back at 3 p.m., but she did not return until 3:15 p.m.
Upon her return, Stebbins confronted Hudson.
He was very
upset, cursing, raving, and slinging his arms, saying "you said you'd
be back at 3 and you weren't, I need my package and I need it now!"
While this was not Hudson's first encounter with an enraged, yelling,
cursing Stebbins, he seemed unusually violent to her that day, so
much so that she filled out an Information Report.
that this was the first Information Report she had ever made in some
23 years at UA.
She wrote in it that "I thought I should write this
report up because I think David could be a danger to students and
myself in the hall."
Stebbins later "apologized" to Hudson, saying "I would never
hit you because if I did I would be suspended from school."
On November 14, 2007, Stebbins went to the Treasurer's
Office, upset about a charge to his financial account. The situation
was described by Jo Ann Pepper, Financial Systems Coordinator and
Director of Student Accounts. She testified that Stebbins was upset,
yelling, cursing, and ranting.
The incident was so disturbing that
Pepper reported it to Dr. Daniel Pugh, Dean of Students, who
instructed the Treasurer's Office not to deal with Stebbins any
further, but to have him deal directly with Dr. Pugh's office.
As a result of the incidents with Hudson and with the
Treasurer's Office, Stebbins came to the attention of Dr. Monica
Holland, who was at that time Director of the Office of Community
Standards and Student Ethics ("OCSSE"), the office charged with
enforcing the Code of Student Life.
Dr. Holland summoned Stebbins
to her office and charged him with a violation of Section I.B.8. of
the Code of Student Life, "Disorderly conduct including, but not
limited to, verbal abuse or inappropriate behavior or any activity
or behavior prohibited by Ark. Code Ann. § 5-71-207."
Stebbins elected to have Dr. Holland conduct an Immediate
the charged violation.
She did so, and found him responsible for
She placed Stebbins on Conduct Probation for
one year, with the prospect of suspension if there were any more
violations of the Code of Student Life.
She also required Stebbins
to write a letter of apology to the Treasurer's Office; to write one
to Hudson unless it could be confirmed that, as he stated, he had
already apologized to her; and to meet with CEA personnel to develop
a plan to minimize future occurrences of the behaviors that had
resulted in his referral to OCCSE.
Stebbins wrote a letter of apology to the Treasurer's
Office as instructed, but added a P.S.: "I would like to point out
(as calmly as I can, may I add) that I do not appreciate being
defamed like I was.
Claiming that I was accusing individuals of
conspiring this problem, and that I did not calm down after the
waiver was presented to me, are nothing but bald-faced lies.
you know that that is libel, and is illegal."
On November 28, 2007, Stebbins returned to the Treasurer's
He demanded to know who had sent the information about him
to Dr. Holland, saying it contained lies and threatening to file
charges of slander against the Treasurer's Office.
On December 3, 2007, Dr. Holland called Stebbins in to her
office to discuss his conduct upon returning to the Treasurer's
Office, as well as a report of his using profane language with a
Resident Assistant. No charges under the Code of Student Life were
brought against Stebbins as a result of this conduct but, during the
meeting, Stebbins told Dr. Holland of a plan he had for injuring his
As reported by Dr. Holland in a Memo to Stebbins' file,
David indicated he plans to have his father in his room,
at which point he would cut his father's forehead and
take his blood to write a letter of forgiveness. David
indicated he planned to have the occurrence videotaped
and posted on the internet website You Tube.
indicated that thinking of the pain his father would be
in and the screams he would produce gave him "chills."
David proceeded to make the physical motions of a person
who had the chills while making this statement.
was asked how often he thought of this plan, in which he
replied a response to the effect of "I practically jerk
off to it daily."
This meeting so disturbed Dr. Holland that she spoke with her
They decided to contact Jannarone and Chad Parsons
(Counselor-in-residence at Stebbins' dorm), and meet as a group with
Stebbins to try to help him and also to determine if he had the
ability to carry out the threat against his father.
During this meeting, Dr. Holland called Jannarone to
set up the meeting with Stebbins, Jannarone, and Parsons.
meeting was suggested to Stebbins, he abruptly left Jannarone's
On December 5, 2007, Stebbins went to the Pat Walker
He had not run out of his medications at this time,
but he was running low.
Because he was half an hour late for his
appointment, staff at the Health Center told him he would have to
Stebbins became angry and extremely distraught.
He went to the
UA Ombuds Office, where he talked to Susan Theiss, whose job it was
to attempt a neutral resolution of conflicts.
During their meeting,
Stebbins told Theiss that if he did not get his medications, "there
could be another Virginia Tech incident."
This was about eight
months after a student at Virginia Tech shot and killed numerous
innocent bystanders, an incident that made national headlines.
Theiss testified that she almost pushed her "panic button" while
talking with Stebbins.
Psychological Services ("CAPS"), and arranged for him to receive his
During the walk, Stebbins repeated his assertion
about "another Virginia Tech incident," and did not appear to be in
control of what he was saying or doing.
Stebbins' conduct so
disturbed Theiss that -- although her work is by nature confidential
-- she filled out an OCCSE Referral Form about the situation because
she considered Stebbins a significant threat.
As a result of Stebbins' statements about a "Virginia Tech
incident," Dr. Holland decided to place him on interim suspension.
Section I.E.2. of the Code of Student Life defines interim suspension
as "an action requiring that a student immediately leave the campus
and University property.
It suspends the student's participation in
any classes or any other University activities."
Holland arranged for his mother, Mrs. Rita Stebbins, to come to
campus to pick him up.
She also arranged for Lt. Vance Rice of UA
Police Department to be present for security purposes.
suspension and the reasons for it.
She also documented the interim
suspension in a letter to Stebbins, stating that his "Virginia Tech
Sections I.B.1, I.B.8. and I.B.35. of the Code of Student Life.
The terms of the interim suspension were that Stebbins was
not allowed to be in any UA building, dorm, apartment, or campus
event, and must participate in the formal review process under the
Student Judicial System.
Stebbins was so distraught about being suspended that
before leaving campus he threatened to commit suicide, threatened to
attack Lt. Rice, and stated that a "Virginia Tech incident" was
"still a possibility."
Dr. Holland, Mrs. Stebbins, and Lt. Rice
eventually persuaded Stebbins to check in to a hospital for mental
It appears that the most effective form of persuasion
was Lt. Rice's statement that if Stebbins did not voluntarily check
in, he would be arrested and held so that Lt. Rice could seek an
A formal review of Stebbins' interim suspension took place
on January 10, 2008, before a Board of the All University Judiciary
Stebbins testified, as did his mother, Parsons, Theiss and
Dr. Holland. Stebbins and the Board members were allowed to question
each witness until they had explored the matter as fully as they
During his testimony, Stebbins agreed that asking UA to "look
the other way" would not be a reasonable accommodation for statements
such as his "Virginia Tech incident" comments, and acknowledged that
he had come to understand that cursing was not only offensive to some
people, but could be seen as a threat.
The Board found Stebbins responsible for the behaviors
charged, and concluded that interim suspension was the appropriate
response to his "Virginia Tech incident" statements.
that he would be allowed to re-enroll in Fall, 2008, if he fulfilled
the following conditions:
during the period of suspension, he had to obtain mental
resulted in his suspension and his anger management issues; and
he had to sign a waiver allowing OCSSE to confirm his
participation in these counseling sessions.
participate in counseling.
The duration of counseling was to be at
the discretion of the mental health professional.
Finally, a one-year conduct probation would be imposed upon reenrollment.
Stebbins did not appeal the decision of the AUJ.
During the Spring Semester of 2008, Stebbins lived off
Licensed Social Worker at Ozark Guidance Center.
Stebbins with Asperger's Disorder and Relational Problems Related to
Mental Health Diagnoses.
By the time Stebbins stopped coming to her
for counseling, Brown had added Intermittent Explosive Disorder to
the list of diagnoses.
While Stebbins initially stated to Brown that he would "do
anything to get back into school," Brown testified that Stebbins put
forth only minimal effort during the course of treatment, made only
minimal progress, and left at the end of April, 2008, to move home
According to Brown, Stebbins wanted others to adjust
their behavior rather than making the effort to change his own, and
responsibility for them himself.
He repeatedly verbalized thoughts
torturing, and killing people who angered him.
Pursuant to releases authorizing her to convey information
about Stebbins' mental health to UA personnel, Brown told Dr. Holland
in early May, 2008, that in her professional opinion it would not be
safe for Stebbins to return to campus.
asking if he could "come back," and, if not, "how to appeal that
Dr. Holland responded that Stebbins had not met the
conditions of the AUJ for re-enrollment, and that he had forfeited
his right to appeal by not timely submitting an appeal.
On June 13, 2010, Stebbins sent an e-mail to Chancellor
Gearhart, making demands related to re-enrollment.
Associate Vice Chancellor for Administration, received the e-mail on
a website she and the Chancellor both monitor.
Schwab described the
e-mail not only as threatening, but as "off the continuum" of rage
Although it was after business hours when she received
the e-mail, Schwab was sufficiently concerned to call Chancellor
Gearhart at home to alert him about it.
The subject line of this e-mail stated "You're a hair's breadth
away from getting sued out your ass."
The content of the e-mail is
instructive in understanding the situation that presented itself at
that time, and is repeated here verbatim:
Listen up, you fucking maggot,
For the purposes of this email, I am not talking to the
University of Arkansas; I am talking to David Gearhart in
your individual capacity.
Remember, since I am
addressing, not the UA Chancellor, but David Gearhart,
that means that you do not have sovereign immunity.
On January 2008, I was expelled because your fucking
inbred, crackpot employees couldn't be bothered to
accommodate my disability.
They say I "made a terroristic threat." That is fucking
bullshit! I didn't fucking threaten anyone. YOU TOOK IT
So, listen up, you fucking retard, you fucking inbred,
cocksucking piece of shit.
I'm not asking you, and I
sure as hell am not asking you kindly: You have sixteen
business hours - you have until 5PM this Tuesday evening
- to do the following:
Override the student accounts office (that is why I
am talking to you, because, if anyone has the authority
to do that, it's you).
Remove my suspension. Make it so that, officially,
I was never kicked out against my will in the first
place; I withdrew on my own.
Allow me to re-admit myself to the University of
Arkansas on the spot, no applications, no fucking
interviews, no jack shit.
Send me an email telling me that the above three
have been accomplished.
All of them must be completed by Tuesday, June 15, 2010
at 5:00PM CT. If they are not, I will sue you in your
individual capacity and collect $50,000 in punitive
damages from you.
Thank you, and go to hell.
Harrison, AR 72601
On June 14, 2010, a Threat Assessment Team was convened
to determine how to respond to this e-mail.
It was determined that
Stebbins should be placed under a criminal trespass warning for a
year, during which he would not be allowed on UA property.
advised Stebbins by e-mail that he was not to make direct contact
with any member of administration; that he should contact Lt. Rice
and make arrangements if he need to meet with anyone at UA;
his status could be re-evaluated in a year.
Stebbins testified that UA should have accommodated him
with access to his medications and "patience."
He contended that UA
should have given him the benefit of the doubt, as long as it was
possible that he did not mean to carry out his "Virginia Tech
The evidence supports a finding that Dr. Holland and the
AUJ Board reasonably believed that Stebbins' threats of violence had
to be taken seriously. The Vista Health records available to the CEA
included a note that Mrs. Stebbins had told Stebbins' counselor that
Stebbins could be both verbally and physically aggressive.
Pepper and Theiss had made written reports about Stebbins' disturbing
Dr. Holland had access to this information when she heard
Stebbins verbalize his gruesome plan regarding his father, and his
"Virginia Tech incident" comments.
CONCLUSIONS OF LAW
because he failed to exhaust administrative remedies when he did not
appeal the decision of the AUJ.
The Court finds this contention
UA did not plead failure to exhaust as an affirmative
defense in its Answer.
Generally speaking, "'failure to plead an
affirmative defense results in a waiver of that defense'." Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).
the Eighth Circuit has recognized that a trial court may exercise
discretion to allow the defense to be untimely pled if it does not
result in unfair surprise, UA never sought to amend its Answer, nor
was the matter brought to the Court's attention until shortly before
Under these circumstances, the Court finds that UA has waived
To make out a prima facie case on his Rehabilitation Act
claim, Stebbins must show the following:
that he is a person with a disability, as defined by
question, enrollment at UA;
discrimination based on his disability; and
that the program or activity from which he was excluded
receives federal financial assistance.
Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
"Disability," for purposes of the Rehabilitation Act, has
the meaning given in 42 U.S.C. § 12102.
29 U.S.C. § 705.
substantially limits one or more major life activities, a person with
a record of such impairment, and a person regarded as having such an
communicating, and working.
Defendant admitted, in Responses to
Requests for Admission, that Stebbins was eligible for accommodations
based on the disability of Asperger's Syndrome.
Thus, element (a)
is not in dispute.
available financial aid including statements relating to application
for Federal Student Aid, and this was admitted without objection.
It appears, therefore, that element (d) is also undisputed.
A person is "otherwise qualified" under the Rehabilitation
Act if, with reasonable accommodations, he "can perform the essential
functions of the position in question without endangering the health
and safety of the individual or others."
Wood v. Omaha School
reasonable accommodations is a form of disability discrimination.
Peebles v. Potter, 354 F.3d 761, 765-67 (8th Cir. 2004).
accommodations would render him "otherwise qualified."
St. Louis University, 442 F.3d 1069, 1077 (8th Cir. 2006).
not have used any particular words to request accommodations, but
must have said enough to invoke the "interactive process" whereby he
and UA would have worked out what accommodations were appropriate for
Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir.
Stebbins failed to establish that he requested reasonable
accommodations applicable to the reason for his suspension.
Asperger's Syndrome, the only accommodation he mentioned was "help
negotiating my tactlessness w/my professors."
His statements that
if he did not get his medications refilled there could be another
"Virginia Tech incident" are on a different order of magnitude than
They could reasonably be interpreted as threats
to the safety of the entire UA community, and in fact were so
Moreover, Stebbins failed to show that the accommodations he
requested after having made the "Virginia Tech incident" comments -patience and understanding, giving him the benefit of the doubt, not
taking his words as threatening unless he really meant them that way,
giving him a second chance -- were reasonable.
accommodate behavior that rises to the level of a violation of the
Code of Student Life, such as threats and profanity.
touchstone for reasonable accommodations supports this position.
accommodation is not reasonable if it imposes undue financial and
administrative burdens on an institution.
Kohl by Kohl v. Woodhaven
Learning Center, 865 F.2d 930, 936 (8th Cir. 1989).
For UA officials
to have adopted a "wait and see" attitude in the face of Stebbins'
"Virginia Tech incident" comments would have burdened UA with the
risk of all the financial, administrative, and human toll that
another Virginia Tech incident would have carried with it had they
made the wrong decision.
It cannot be seriously argued that such
would be reasonable.
Stebbins also failed to establish that he was excluded
from the benefit of UA enrollment due to discrimination based on his
The evidence shows that accommodations appropriate to
Asperger's Syndrome were afforded Stebbins, and that he was not
suspended for "tactlessness" or the social awkwardness and challenges
with social interaction that characterize Asperger's Syndrome.
was suspended for making threats, which is not a characteristic of
Not only did Stebbins fail to establish a prima facie case
of discrimination, UA succeeded in establishing its affirmative
community, as to which it had the burden of proof.
Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007).
EEOC v. Wal-Mart
The criteria to be
used in assessing whether a student presents a direct threat are
drawn from School Board of Nassau County, Fla. v. Arline, 480 U.S.
273, 287 (1987), wherein the Court said that the Rehabilitation Act
has goals of protecting handicapped individuals from discrimination
"while giving appropriate weight to such legitimate concerns of
grantees as avoiding exposing others to significant health and safety
Factors to consider in the evaluation of risk under Arline
the nature of the risk;
the duration of the risk;
the severity of the risk; and
the probability of the risk.
When the Arline factors are applied to the facts of this
case, they lead ineluctably to the conclusion that UA officials
properly evaluated Stebbins as a direct threat to UA on December 5,
2007, when he made repeated statements that if he did not get his
medications refilled there could be another "Virginia Tech incident."
The nature of the risk:
Stebbins' statements about a "Virginia Tech incident" went far
beyond the tactlessness and "smarting off" he noted when registering
with the CEA.
Only a few months before, a student had shot and
killed a large number of people on the campus of Virginia Tech, a
highly publicized event that shocked the nation, and especially those
on college campuses.
UA was not required to prove that a threat was
actually made and intended by Stebbins, but rather that those who
heard his statements reasonably believed that a threat was made.
Mershon, supra, 442 F.3d at 1075.
Based on Stebbins' history at UA,
Dr. Holland and the AJU could reasonably have believed that Stebbins
might do the same thing.
The duration of the risk:
By December 5, 2007, Stebbins had been a student at UA for
significant difficulties in his interactions with dorm staff and
Treasurer's Office staff.
Dr. Holland, who made the decision to
reasonable for her to believe that the December 5, 2007, incident was
not an isolated one, but rather a pattern that had existed from
The severity of the risk:
implicated the safety -- indeed, the lives -- of students, faculty,
The probability of the risk:
Given Stebbins' history since matriculation -- reflecting a
perceive merely as minor annoyances -- it was reasonable for Dr.
Holland, and later the AUJ, to believe that there was a significant
probability that Stebbins would carry out his threats of another
"Virginia Tech incident."
Finally, the Court is not persuaded that there was any
violation of law when UA decided not to allow Stebbins to re-enroll
following his profanity-filled e-mail to Chancellor Gearhart. In
addition to the fact that Stebbins still had not satisfied the
conditions of re-enrollment established by the AUJ, there was the
threatening tone of the e-mail itself.
While Stebbins argued at trial that the only threat to be found
in the e-mail was a threat to sue Chancellor Gearhart, the Court does
The e-mail is extremely profane, and Stebbins admitted at
the AUJ hearing -- long before he sent the e-mail -- that he knew
profanity could be perceived as threatening.
The tone of the e-mail is intensely malicious.
The e-mail is couched in terms of demands that must be met
The threat to sue is obviously coercive in nature.
When viewed in light of Stebbins' past history at UA, and his
mental health treatment records, the e-mail was clearly threatening,
and the Court finds that it was reasonable for UA to conclude that
Stebbins should not be allowed back in school, or even on campus.
Having concluded that Dr. Holland's interim suspension was
reasonable; that the interim suspension of the AUJ was reasonable;
and that the criminal trespass warning in 2010 was reasonable, it
follows that Stebbins' claim that UA violated the Rehabilitation Act
is without merit.
There is, therefore, no need to address the issues
of damages or injunctive relief.
His claims will be denied and
dismissed with prejudice, and a separate judgement to this effect
will be entered contemporaneously herewith.
IT IS SO ORDERED, this 28th day of December, 2012.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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