Department of Fair Employment and Housing v. Law School Admission Council Inc

Filing 49

ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 13 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 9/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING,

No. C-12-1830 EMC

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Plaintiff,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS

v.
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For the Northern District of California

United States District Court

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LAW SCHOOL ADMISSION COUNCIL
INC, et al.,

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Defendants.
___________________________________/

(Docket No. 13)

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I.

INTRODUCTION

The California Department of Fair Employment and Housing (DFEH) filed suit against the

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Law School Admission Council, Inc. (LSAC) seeking damages and injunctive relief over alleged

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failures of the Defendant to provide disability related accommodations to test-takers of the Law

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School Admission Test (LSAT) in violation of the Americans with Disabilities Act of 1990, 42

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U.S.C. §§ 12101, et. seq. DFEH’s Complaint (Docket No. 1, Ex. A) states that it brought this action

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both on behalf of seventeen named individuals and as a class action. Compl. ¶ 7-8. LSAC thereafter

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filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) asking this Court to

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dismiss Plaintiff’s complaint in its entirety, or, alternatively, in substantial part. LSAC’s arguments

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in support of its motion fall within five broad categories: (1) that DFEH lacks jurisdiction over the

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subject matter of this litigation, (2) that the claims asserted in DFEH’s complaint fail to state a claim

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under Fed. R. Civ. P. 12(b)(6), (3) that certain requested money damages are unavailable as a matter

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of state law, (4) that certain class-based claims cannot be pursued as a matter of law because DFEH

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failed to follow proper administrative procedure at earlier stages in this litigation, and (5) that Doe

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defendants must be dismissed from the complaint because DFEH fails to plead any facts regarding

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their alleged actions or inactions. Having considered the parties’ submissions and oral argument, the

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Court GRANTS IN PART and DENIES IN PART Defendant’s motion for the reasons set forth

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below.

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II.

FACTUAL & PROCEDURAL BACKGROUND

things, administers the Law School Admissions Test (LSAT) to prospective law students. The

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LSAT is a standardized test that evaluates potential law school applicants on their acquired reading

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and verbal reasoning skills. Compl. ¶ 46. The test consists of a battery of five sections labeled as

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either reading comprehension, analytical reasoning, or logical reasoning. Id. ¶ 49. Each of these

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For the Northern District of California

LSAC is a non-profit membership organization based in Pennsylvania that, among other

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United States District Court

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five sections consists of multiple-choice type questions, and test-takers are allotted thirty-five

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minutes to complete each section. Id. ¶ 47. The test also includes an unscored thirty-five minute

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written component, which LSAC forwards to law schools along with a test-taker’s scores. Id.

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DFEH’s Complaint focuses on LSAC’s practices in providing testing accommodations to

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test-takers who claim to be disabled. LSAC claims to conscientiously evaluate requests for testing

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accommodation to ensure that “individuals with bona fide disabilities receive accommodations, and

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that those without disabilities do not receive accommodations” which could provide them with an

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unfair advantage on the exam. Def’s Motion (Docket No. 13) at 2 (quoting Powell v. Nat’l Bd. of

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Med. Examiners, 364 F.3d 79, 88-89 (2d Cir. 2004)).

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DFEH claims that LSAC’s accommodations evaluation procedures include, among other

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things, requirements that testing candidates requesting extra time or other accommodations for a

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“cognitive or psychological impairment” submit to psychoeducational and neuropsychological

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testing, and provide a “full diagnostic report” that includes records of the candidates’ aptitude and

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achievement testing. Compl. ¶ 54. DFEH also claims that LSAC requires applicants to disclose in

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an accommodations request whether or not they took prescribed medications during medical

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evaluations of their condition, and if not, to explain their failure to do so. Id. ¶ 55. According to

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LSAC, “more than a thousand individuals request disability-based accommodations on the LSAT

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every year, and LSAC grants accommodations to most, but not all, of those individuals.” Def’s

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Motion (Docket No. 13) at 2.

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DFEH also alleges that LSAC maintains a policy of “flagging” the LSAT exam scores of

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individuals who receive disability accommodations for extra time. Compl. ¶ 56. LSAC includes a

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notation on an accommodated individuals’ score report that the score was achieved under non-

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standard time constraints, and excludes extended-time scores when calculating its LSAT percentile

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rankings. Id. ¶¶ 56-57. As a consequence, the fact that an individual received extended-time on the

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LSAT is disclosed to all law schools receiving that individual’s score report. See Id. ¶ 56.

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However, LSAC does advise schools that extended-time score reports “should be interpreted with

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For the Northern District of California

United States District Court

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great sensitivity and flexibility.” Id. ¶ 56.
In 2010, DFEH received multiple written “verified complaints of discrimination” from

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individuals alleging that LSAC had denied them reasonable accommodations for their disabilities

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when taking the LSAT. Id. ¶ 19-20. These written complaints alleged that LSAC had unlawfully

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denied them “full and equal access to the LSAT” in violation of the California Fair Housing and

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Employment Act (FEHA) (Cal. Gov. Code §§ 12900, et. seq.) and the Unruh Civil Rights Act (Cal.

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Civ. Code §§ 51, et. seq.). Compl. ¶¶ 19-20. By virtue of its incorporation into the Unruh Act, a

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violation of the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101, et. seq.) also

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constitutes a violation of the Unruh Act. Compl. ¶ 16; see also Unruh Act, Cal. Civ. Code § 51(f).

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Upon receiving these complaints, DFEH began an investigation to ascertain whether LSAC’s

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alleged denial of full and equal access affected a larger class of test-takers. Id. ¶ 21. On July 22,

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2010, DFEH issued to LSAC a document titled “Notice of Class Action Complaint and Director’s

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Complaint.” Id. ¶ 22.; See Compl., Ex. 3. The notice defined the potentially affected class as “all

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disabled individuals in the State of California who have or will request an accommodation for the

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Law School Admission Test (LSAT), administered by the LSAC, and who have or will be

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unlawfully denied such request from January 19, 2009 to the conclusion of the Department’s

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investigation of this complaint.” Id. During its investigation, DFEH sought administrative

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discovery to determine the identities of other individuals in California who had been denied

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reasonable accommodations by LSAC during the period mentioned in the notice. Id. ¶ 23. Over

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LSAC’s objections, DFEH obtained an order from a California Superior Court directing LSAC to

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respond to DFEH’s discovery requests. Id.

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As a result of its investigation and discovery, DFEH filed an administrative accusation

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before the California Fair Employment and Housing Commission on February 6, 2012, which LSAC

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elected to have transferred to the California Superior Court in Alameda County under Cal. Gov.

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Code § 12965(c)(1). Compl. ¶¶ 40-42. The administrative accusation, brought on behalf of

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seventeen individuals as a group, and as a class action on behalf of “all disabled individuals in the

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State of California who requested a reasonable accommodation for the Law School Admission Test

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(LSAT) from January 19, 2009 to February 6, 2012,” charged LSAC with violations of the Unruh
Act. Id. ¶¶ 7-8, 40. LSAC thereafter removed the matter from the Alameda County Superior Court

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For the Northern District of California

United States District Court

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to this Court on April 12, 2012, pursuant to 28 U.S.C. § 1441 on the basis of federal question

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jurisdiction and diversity jurisdiction.

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DFEH’s state court complaint advances the following five causes of action against LSAC for
violations of the Americans with Disabilities Act:

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(1)

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impairment substantially limits a major life activity by requiring applicants for

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reasonable accommodations to take their prescribed medications while being

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evaluated, or to provide an explanation for a failure to do so, in violation of 42 U.S.C.

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§ 12102(4)(E)(1)(i)(I);

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(2)

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time failed to ensure that the LSAT measured aptitude, rather than disability, in

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violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309;

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(3)

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applicants from seeking reasonable accommodations or punished those who received

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accommodations, in violation of 42 U.S.C. § 12203;

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(4)

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by requiring excessive documentation and by denying reasonable accommodations, in

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violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv); and

LSAC unlawfully considered mitigation measures in determining whether an

LSAC’s policy of flagging score reports of individuals receiving additional

LSAC’s flagging policy unlawfully coerced and discouraged potential

LSAC breached its duty to make the LSAT accessible to disabled individuals

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(5)

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accommodation requests coerced and discouraged potential applicants from seeking

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reasonable accommodations, in violation of 42 U.S.C. § 12203.

LSAC’s policy of requiring excessive documentation to support

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Compl. ¶¶ 187-216. DFEH brought the first three causes of action on behalf of all class members,

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while the fourth and fifth causes of actions were brought only on behalf of the seventeen named

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plaintiffs. Id.

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LSAC filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). LSAC

litigation, (2) that the claims asserted in DFEH’s complaint fail to state a claim under Fed. R. Civ. P.

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12(b)(6), (3) that certain requested money damages are unavailable as a matter of state law, (4) that

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For the Northern District of California

asserts five arguments for dismissal: (1) that DFEH lacks jurisdiction over the subject matter of this

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United States District Court

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certain class-based claims cannot be pursued as a matter of law because DFEH failed to follow

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proper administrative procedure at earlier stages in this litigation, and (5) that Doe defendants must

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be dismissed from the complaint because DFEH fails to plead any facts regarding their alleged

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actions or inactions.

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Aside from the Plaintiff’s and Defendant’s briefs on this motion, two additional non-parties

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to this litigation have filed materials with the Court regarding LSAC’s motion: the Legal Aid

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Society-Employment Law Center (LAS-ELC) and the United States Department of Justice (DOJ),

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which filed a Statement of Interest in this matter pursuant to 28 U.S.C. § 517.

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III.
A.

DISCUSSION

Legal Standard - Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

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failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

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dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

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Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

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must take all allegations of material fact as true and construe them in the light most favorable to the

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nonmoving party, although “conclusory allegations of law and unwarranted inferences are

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insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009). Thus, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

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more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

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not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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At issue in a 12(b)(6) analysis is “not whether a plaintiff will ultimately prevail, but whether

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). While “a complaint need not contain detailed factual

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allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’”

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Cousins, 568 F.3d at 1067 (9th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Bell Atl. Corp. v.

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Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’ but

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For the Northern District of California

the claimant is entitled to offer evidence to support the claims” advanced in his or her complaint.

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United States District Court

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it asks for more than sheer possibility that a defendant acted unlawfully.” Id.

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In ruling on a motion to dismiss, a court may look to documents whose contents are

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specifically alleged as part of a complaint, even though the plaintiff did not append them to the

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complaint. Although generally “a district court may not consider any material beyond the pleadings

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in ruling on a Rule 12(b)(6) motion,” “material which is properly submitted as part of the complaint

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may be considered” on such a motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

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1542, 1555 n. 19 (9th Cir.1990). A “document is not ‘outside’ the complaint if the complaint

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specifically refers to the document and if its authenticity is not questioned.” Branch v. Tunnell, 14

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F.3d 449, 453 (9th Cir. 1994) overruled on other grounds by Galbraith v. County of Santa Clara,

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307 F.3d 1119 (9th Cir. 2002) (citing Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th

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Cir.1982)). “[D]ocuments whose contents are alleged in a complaint and whose authenticity no

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party questions, but which are not physically attached to the pleading, may be considered in ruling

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on a Rule 12(b)(6) motion to dismiss.” Id. at 454.

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In the context of a motion under Rule 12(b)(1) for lack of jurisdiction, the district court has

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greater flexibility. “When considering a motion to dismiss for lack of subject matter jurisdiction, the

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district court may properly review evidence outside the pleadings to resolve factual disputes

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concerning the existence of jurisdiction.” Wilson-Combs v. California Dept. of Consumer Affairs,

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555 F. Supp. 2d 1110, 1114 (E.D. Cal. 2008) (citing Land v. Dollar, 330 U.S. 731, 735 Fn. 4

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(1947)).

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B.

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Jurisdiction of DFEH
DFEH is a California state agency responsible for enforcing the state’s civil rights laws. It

Gov. Code, § 12900 et seq, wherein DFEH is granted, among other authorities, the power to

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“receive, investigate, and conciliate complaints” of discrimination not only in employment matters

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under § 12940 (see § 12930(f)(1)), but also in discrimination cases that fall within the scope of

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California’s Unruh Civil Rights Act. Cal. Gov’t Code § 12930(f). In addition, FEHA substantively

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incorporates the Unruh Act, as § 12948 declares it “an unlawful practice under this part for a person

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For the Northern District of California

derives its enforcement authority from California’s Fair Employment and Housing Act (FEHA), Cal.

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United States District Court

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to deny or to aid, incite or conspire in the denial of the rights created by Section 51, 51.5, 51.7, 54,

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54.1, or 54.2 of the Civil Code.” Cal. Gov’t Code § 12948.

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The Unruh Civil Rights Act, in turn, states that all persons within the State of California are

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“entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all

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business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). In addition, the Unruh

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Act expressly incorporates the Americans with Disabilities Act by providing that a “violation of the

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right of any individual under the federal Americans with Disabilities Act of 1990 (P.L. 101-336)

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(“ADA”) shall also constitute a violation of this section.” Cal. Civ. Code § 51(f).

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Section 12189 of the ADA contains a specific provision addressing disability access and

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accommodations in the context of standardized testing. The ADA directs that “any person that

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offers examinations or courses related to applications, licensing, certification, or credentialing for

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secondary or post-secondary education, professional, or trade purposes shall offer such examinations

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or courses in a place and manner accessible to persons with disabilities or offer alternative

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accessible arrangements for such individuals.” 42 U.S.C. § 12189.

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Thus under FEHA, DFEH has jurisdiction to investigate ADA violations in the State of
California, including § 12189 of the ADA via its enforcement of § 51 of the Unruh Civil Rights Act.
LSAC’s motion challenges DFEH’s statutory authority to investigate or file complaints
involving accommodation requests on standardized admissions tests, and to pursue claims of

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disability discrimination that are not first alleged in a verified complaint received by the agency.

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LSAC argues that (1) DFEH lacks statutory jurisdiction to assert claims for disability discrimination

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that are not expressly created under § 51 of the California Civil Code, see Def’s Motion at 8-10, and

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(2) that a proper reading of DFEH’s jurisdiction under California law limits its investigatory and

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prosecutorial authority solely to claims expressly raised in a verified complaint received by the

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agency, see Def’s Motion at 10-12. At oral argument, LSAC questioned further whether the Unruh

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Act’s incorporation of the “Americans with Disabilities Act of 1990 (P.L. 101-336),” see Cal. Civ.

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Code § 51(f), limits DFEH’s derivative jurisdiction via the Unruh Act to only those provisions of the

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ADA that existed in 1992 at the time of its incorporation into state law, see 1992 Cal. Legis. Serv.
Ch. 913 (A.B. 1077) §§ 1, 3. This last argument challenges, in essence, whether DFEH can enforce

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For the Northern District of California

United States District Court

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amendments to the ADA in its suit against LSAC.

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LSAC argues that DFEH lacks statutory jurisdiction to assert claims for disability

Rights ‘Created’ Under § 51

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discrimination that are not expressly “created” under § 51 of the California Civil Code. In

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particular, LSAC argues that the FEHA limits DFEH’s scope of authority to “rights created by

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Section 51 . . . of the Civil Code.” Id. at 8 (citing Cal. Gov’t Code § 12948). Inasmuch as ADA

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violations are incorporated into § 51 by virtue of subsection (f), which expressly makes a “violation

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of the right of any individual under the federal Americans with Disabilities Act of 1990” also

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violative “of this section,” they are not according to LSAC “created” by Section 51 and thus fall

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outside the scope of DFEH’s enforcement authority. Id. at 9 (emphasis added). LSAC’s reading of

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FEHA is unpersuasive.

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First, the rights encompassed by § 51 are in common parlance “created” by that provision.

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Whether the rights are explicitly enumerated in § 51 or incorporated by reference pursuant to its

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terms, § 51 accords them legal status, brings them into existence, and thus “creates” them. See

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American Heritage Dictionary, 3rd Edition, p. 438 (1992) (defining “create” as “To cause to exist;

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bring into being”); www.meriam-webster.com/dictionary/create (“create” defined as “to bring into

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existence.” Thus, under the California Constitution, the California Legislature created the rights

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encompassed by § 51 when it enacted that section into law.

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Second, it makes no logical or policy sense why the DFEH would be empowered to enforce

Indeed, it would be contrary to the general legislative intent behind the Unruh Act’s incorporation of

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the ADA. More than fifteen years before the enactment of the federal ADA, the California

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Legislature in 1977 amended the Fair Employment Practices Act to include physical handicap as a

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prohibited basis for discrimination. See former Cal. Labor Code § 1420(a) (repealed by Stats. 1980,

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c. 992, p. 3166, § 11). That same year, the California Legislature declared that “[i]t is the policy of

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this state to encourage and enable individuals with a disability to participate fully in the social and

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economic life of the state.” Cal. Gov’t Code § 19230 (added by Stats. 1977, c. 1196, p. 3977, § 2).

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Nineteen years later, in response to the passage of the federal ADA, California amended the Unruh

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For the Northern District of California

some rights encompassed by § 51 (i.e., those under 51(b))1 and not others (those under 51(f)).

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United States District Court

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Act as part of omnibus legislation designed to “strengthen California law where it is weaker than the

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ADA and to retain California law when it provides more protection than the ADA.” See Stats. 1992,

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ch. 913, § 1 (AB 1077) and Assembly Judiciary Committee, AB 1077 (Jan. 22,1992), at 2. In

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addition, such a narrow interpretation of the Unruh Act contravenes the directive of the California

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Supreme Court to construe that law liberally. In Munson v. Del Taco, Inc., 46 Cal. 4th 661, 669

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(2009), the California Supreme Court stated “with regard to the Unruh Civil Rights Act . . . that it

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must be construed liberally in order to carry out its purpose to create and preserve a

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nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’

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arbitrary, invidious discrimination by such establishments.” Id. at 666 (citing Angelucci v. Century

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Supper Club, 41 Cal.4th 160, 167 (2007)).

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Furthermore, the DFEH interprets FEHA as conferring upon it jurisdiction to enforce the

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ADA as it is incorporated into the Unruh Act; the enforcing agency’s interpretation is entitled to

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some weight. As observed in Giles v. Horn, 100 Cal. App. 4th 206 (2002):

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Additionally, “[w]hile the ultimate interpretation of a statute is an
exercise of the judicial power [citation], when an administrative

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Section 51(b) of the Unruh Civil Rights Act states that “all persons within the jurisdiction
of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, genetic information, marital status, or sexual orientation are
entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b).

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agency is charged with enforcing a particular statute, its interpretation
of the statute will be accorded great respect by the courts ‘and will be
followed if not clearly erroneous.’” Judson Steel Corp. v. Workers’
Comp. Appeals Bd. (1978) 22 Cal. 3d 658, 668-669, 160 Cal. Rptr.
250, 586 P.2d 564 (Judson Steel), quoting Bodinson Mfg. Co. v.
California E.Com. (1941) 17 Cal. 2d 321, 325-326, 109 P.2d 935.
Courts find administrative interpretations of a law to be “significant
factors in ascertaining statutory meaning and purpose. [Citations.]”
Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal. 3d 35,
45, 136 Cal. Rptr. 854, 560 P.2d 743.

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Giles, 100 Cal. App. 4th at 220-21. See Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th Cir.

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2001) (“We accord great respect to the Commission’s interpretation of its authority and will follow

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it unless it is clearly erroneous.”).2
In support of its narrow reading of FEHA, LSAC relies solely on Turner v. Ass’n of

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For the Northern District of California

United States District Court

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American Medical Colleges, 167 Cal. App. 4th 1401 (2008). LSAC reads the Turner decision as

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holding that the rights ‘created’ by § 51 of the Unruh Act are limited to the rights enumerated in §

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51(b), and do not include any ADA-based rights incorporated into the Unruh Act through subsection

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(f). See Def’s Motion at 8; Def’s Reply (Docket 30) at 2. LSAC’s reading of Turner not only

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misstates the court’s holding in that case, but also ignores the court’s explicit finding that a violation

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of the ADA can also constitute a violation of the Unruh Act. In Turner, plaintiffs challenged

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“certain standards for the administration of the Medical College Admission Test (MCAT), including

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a time limit for each section of the test,” which were “neutral and extend to all applicants regardless

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of their membership in a particular group.” 167 Cal. App. 4th at 1409. Importantly, the plaintiffs in

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Turner claimed that their request for accommodations for more time and/or a private room “should

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have been considered under [California] state laws, which define disability more broadly than the

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ADA to include a mental, psychological or physical condition that limits a major life activity, i.e.,

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that makes the achievement of the major life activity difficult.” Id. (internal citations and quotations

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omitted). Plaintiffs did not premise their claims on violations of the ADA as incorporated into the

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Unruh Act through operation of § 51(f), as Plaintiffs in the instant case do. Instead, plaintiffs’ claim

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in Turner were based solely on rights covered by § 51(b). Turner found that because the limiting

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To be sure, the degree of deference to the agency’s interpretation may arguably be lessened
where that interpretation is not formally codified in a regulation.

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language in § 51(c) restricts the scope of § 51(b) from applying to “practices and policies that apply

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equally to all persons,” plaintiffs could not base their complaint over the denial of reasonable

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accommodation on § 51(b) of the Act.3 Id. at 1408.

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Since Turner did not base its ruling on a construction of § 51(f) of the Unruh Act, the court

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stated its holding “does not mean that disabled persons in California may not seek reasonable

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accommodations for their learning and reading-related disabilities when taking a standardized test.”

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Id. at 1410. Quite to the contrary, Turner expressly held that “the Unruh Act does indirectly

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penalize a failure to grant reasonable accommodations in Civil Code section 51, subdivision (f),

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which incorporates otherwise relevant ADA standards as a floor under state law,” and, thus, “a
violation of the right of any individual under the Americans with Disabilities Act of 1990” would

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For the Northern District of California

United States District Court

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“also constitute a violation of this section.” Id. (emphasis in original). In such a case:

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Civil Code section 51, subdivision (c) and the cases construing it can
be readily harmonized with section 51, subdivision (f) and the ADA
provisions it incorporates. Simply put, in addressing a claim that a
facially neutral testing policy has a disparate impact on persons with
learning and reading-related disabilities, accommodations are required
to the extent they are required under the ADA.

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Turner, 167 Cal. App. 4th at 1410.

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Thus, the Turner decision did not conclude that the rights ‘created’ by § 51 are limited to

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those listed in subsection (b) of the Act. It simply held that § 51(c) restricted the scope of rights

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under § 51(b) but recognized that § 51(f) – incorporating those rights protected by the ADA –

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provided an independent source of protection.

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The LSAC has failed to prove that DFEH lacks jurisdiction under § 51(f) of the Unruh Act to
pursue violations of the ADA.

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2.

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LSAC further argues that DFEH’s jurisdiction to pursue Unruh Act violations is limited to

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Unruh Act Violations Limited to Subject Matter of FEHA

matters that involve the original subject matter of FEHA. See Def’s Motion at 10. LSAC maintains

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Section 51(c) states “this section shall not be construed to confer any right or privilege on a
person that is conditioned or limited by law or that is applicable alike to persons of every sex, color,
race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual
orientation or to persons regardless of their genetic information.” Cal. Civ. Code § 51(c).

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that FEHA’s original subject matter is limited to employment and housing discrimination, and

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neither of these encompasses standardized tests. See id. It argues in the alternative that the

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California Legislature intended to incorporate into the Unruh Act “only those provisions of the ADA

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germane to the original scope of those state laws.” See id. (citing Bass v. County of Butte, 458 F.3d

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978, 982 (9th Cir. 2006)). In support of this latter argument, LSAC cites to Anderson v. County of

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Siskiyou, 2010 WL 3619821, at *6 (N.D. Cal. Sept. 13, 2010), where a court held that the Unruh Act

7

did not incorporate ADA claims that could be brought against a jail since the jail lacked the

8

attributes of a business and would not qualify as a “business establishment” under the terms of the

9

Act. Under either theory, LSAC argues, DFEH lacks jurisdiction to pursue ADA claims regarding
standardized testing. Neither of these arguments stands up to scrutiny.

11
For the Northern District of California

United States District Court

10

As discussed above, the California legislature amended the Unruh Act in 1992 to explicitly

12

incorporate rights guaranteed under the federal ADA. That incorporation under § 51(f) contains no

13

exclusion of the ADA as it affects public accommodations. The purpose of this amendment was to

14

“conform state anti-discrimination laws with the provisions of the Americans with Disabilities Act.”

15

Bass v. County of Butte, 458 F.3d 978, 981 (9th Cir. 2006) (citing Assem. Off. of Research, 3d

16

reading analysis, A.B. 1077 (Cal.1992 Reg. Sess.)). Indeed, more to the point, the Unruh Act

17

prohibits a range of discriminatory practices with respect to public accommodations. Charged with

18

enforcement of the Unruh Act, the DFEH obviously has jurisdiction to enforce anti-discrimination

19

rights beyond matters of employment and housing. While “California courts have, historically,

20

rejected attempts by plaintiffs to expand the scope of the Unruh Act to include employment claims,”

21

Bass, 458 F.3d at 981, here the rights at issue fall squarely within the historical arena of the Unruh

22

Act and are “germane to the statutes’ original subject matter.” See Id. at 980, 983.

23

Furthermore, the California Fair Employment and Housing Commission (“Commission”) has

24

held in Dep’t Fair Empl. & Hous. v. Univ. Of Cal. Berkeley, 1993 WL 726830, at *11, that neither

25

Government Code § 12930 nor § 12948 contain “any limitation on the kinds of Unruh Act violations

26

that may be addressed administratively under the FEHA, and the obvious conclusion is that no such

27

limitation was intended.” Id. at 10. The statute’s provisions are to be “construed liberally for the

28

accomplishment of [its] purposes,” Cal. Gov’t. Code § 12993, and courts generally “accord great

12

1

respect to the Commission’s interpretation of its authority and will follow it unless it is clearly

2

erroneous,” Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th Cir. 2001).

3
4

Accordingly, the DFEH has jurisdiction under the Unruh Act to enforce Title III violations of
the ADA, including rights thereunder with respect to standardized testing.4

5

3.

6

At oral argument, the parties disagreed over whether § 51(f) of the Unruh Act incorporates

ADA Incorporation into the Unruh Act

7

the ADA as it currently exists in federal law, or only as it existed in 1992 when the Legislature

8

enacted § 51(f). Having reviewed the supplementary briefing materials, the Court concludes that the

9

Unruh Act incorporates the ADA not only as it currently exists, but also as it “may be changed from

11
For the Northern District of California

United States District Court

10

time to time.” Palermo v. Stockton Theatres, 32 Cal. 2d 53, 59 (1948).
Section 51(f) states that a “violation of the right of any individual under the federal

12

Americans with Disabilities Act of 1990 (P.L. 101-336) shall also constitute a violation of this

13

section.” Since its initial passage in 1990, the ADA has been amended at least five times. See Pub.

14

L. 102-166, Nov. 21, 1991, 105 Stat. 1071; Pub. L. 104-1, Jan. 23, 1995, 109 Stat. 8; Pub. L. 104-59,

15

Nov. 28, 1995, 109 Stat. 608; Pub. L. 104-287, Oct. 11, 1996, 110 Stat. 3400; Pub. L. 110-325, Sept.

16

25, 2008, 122 Stat. 3554. The last of these amendments introduced several changes to the ADA,

17

including changes to the definition of the term ‘disability.’ See Rohr v. Salt River Project Agric.

18

Imp. & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009) (the 2008 amendments “explicitly reject[]

19

several Supreme Court decisions that defined ‘disability’ more narrowly than many of the ADA’s

20

original Congressional proponents had intended”). Both parties cite Palermo v. Stockton Theatres

21

as the lead case for determining the scope of the ADA’s incorporation into the Unruh Act, including

22

the applicability of these latter ADA amendments to § 51(f).

23
24

In Palermo, the California Supreme Court set out a standard for distinguishing among state
laws that incorporate other statutes by reference. “[W]here a statute adopts by specific reference the

25
26
27
28

4

“Title III of the ADA prohibits discrimination on the basis of disability by public
accommodations, commercial facilities, and private entities that offer examinations or courses
related to applications, licensing, certification, or credentialing for secondary or postsecondary
education, professional, or trade purposes.” Statement of Interests of the United States of America
(Docket No. 29) at 2 (citing 42 U.S.C. § 12181, et. seq., and 28 C.F.R. §§ 36.102 and 36.201).

13

1

provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form

2

in which they exist at the time of the reference and not as subsequently modified.” Palermo v.

3

Stockton Theatres, 32 Cal. 2d at 58-59. In contrast, “where the reference is general instead of

4

specific, such as a reference to a system or body of laws or to the general law relating to the subject

5

in hand, the referring statute takes the law or laws referred to not only in their contemporary form,

6

but also as they may be changed from time to time.” Id. at 59. While § 51(f) refers specifically to

7

the original ADA’s public law number, the broad scope of the ADA, even as it existed in 1990,

8

counsels in favor of the broader prong of Palermo.5 See Americans with Disabilities Act of 1990,

9

P.L. 101-336,104 Stat 327, § 2(b)(1) (“It is the purpose of this Act [] to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with

11
For the Northern District of California

United States District Court

10

disabilities”) (emphasis added).

12

In any event, subsequent California Supreme Court decisions have clarified that, as here,

13

“when the statutory words themselves do not make clear whether the statute contemplates only a

14

time-specific incorporation, the determining factor will be legislative intent.” People v. Anderson,

15

28 Cal. 4th 767, 779 (2002) (quoting In re Jovan B., 6 Cal. 4th 801, 816 (Cal. 1993)). See also

16

People v. Domagalski, 214 Cal. App. 3d 1380, 1386 (Cal. Ct. App. 1989) (“in cases where it is

17

questionable whether only the original language of a statute is to be incorporated or whether the

18

statutory scheme, along with subsequent modifications, is to be incorporated, the determining factor

19

will be the legislative intent behind the incorporating statute.”); People v. Pecci, 72 Cal. App. 4th

20

1500, 1505 (1999) (“the Palermo rule is not to be applied in a vacuum. The determining factor is

21

legislative intent.”) (citing In re Jovan B., 6 Cal.4th at 816).

22

Here, it is evident that the California Legislature intended to incorporate the ADA as a

23

“system or body of laws,” including evolving changes. The systemic nature of the laws incorporated

24
25
26
27
28

5

It should be noted that under California law a citation to a specific legal provision does not
necessarily render that incorporation a “specific reference” under Palermo. See e.g. In re Jovan B.,
6 Cal.4th at 816 (citation in Cal. Welf. & Inst. Code § 726 to specific sections of the California
Penal Code was an incorporation of a system or body of laws, including subsequent amendments);
People v. Van Buren, 93 Cal. App. 4th 875, 878-79 (2001) overruled on other grounds by People v.
Mosby, 33 Cal. 4th 353 (2004) (citation to Cal. Penal Code § 667.5 “incorporated the
contemporaneous version . . . along with subsequent amendments”).

14

1

is evidenced by the general principle that animated the Legislature: “It is the intent of the

2

Legislature in enacting this act to strengthen California law in areas where it is weaker than the

3

Americans with Disabilities Act of 1990 (Public Law 101–336) and to retain California law when it

4

provides more protection for individuals with disabilities than the Americans with Disabilities Act of

5

1990.” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 669 (2009) (quoting Stats.1992, ch. 913, § 1, p.

6

4282). See also Cal. Gov’t Code § 12926(1)(a). Indeed, the Ninth Circuit held in Lentini v.

7

California Ctr. for the Arts, Escondido that “the Unruh Act has adopted the full expanse of the

8

ADA.” 370 F.3d 837, 847 (9th Cir. 2004) (citing with approval Presta v. Peninsula Corridor Joint

9

Powers Bd., 16 F. Supp. 2d 1134, 1135 (N.D. Cal. 1998)). Importantly, Lentini was decided after
four of the five post-1990 ADA amendments had already been enacted.

11
For the Northern District of California

United States District Court

10

The Court, therefore, finds that § 51(f) of the Unruh Act incorporates by reference the whole

12

of the federal ADA “not only in [its] contemporary form, but also as [it] may be changed from time

13

to time.” Palermo, 32 Cal. 2d at 59.

14

C.

15

Limits to DFEH’s Authority Based on Underlying Complaints
LSAC also challenges DFEH’s ability to bring the specific ADA causes of action advanced

16

in its complaint for essentially failure to exhaust. LSAC argues that a proper reading of DFEH’s

17

jurisdiction under California law limits its investigatory authority solely to those claims that were

18

expressly raised in verified complaints received by the agency. See generally Def’s Motion at 10-

19

12. Implicit within DFEH’s authorizing statutes, argues LSAC, lies an important limitation that

20

“DEFH cannot challenge actions or policies in a post-conciliation accusation” that (1) “were not first

21

identified in a verified complaint to the agency,” (2) “cannot reasonably be expected to grow out of

22

DFEH’s investigation of the allegedly unlawful conduct,” and (3) “were not the subject of good faith

23

conciliation efforts by DFEH.” Def’s Motion at 12. In this case, Defendant argues that “none of the

24

Complainants alleged any ADA violation,” and “none of the Complainants alleged that LSAC’s

25

flagging policy or any of its documentation policies are unlawful.” Id. It contends, because these

26

issues were not specifically raised by the Complainants, “it was therefore improper for DFEH to

27

include in the Complaint any ADA-based claim.” Id. This argument fails to recognize the wide

28

15

1

investigative latitude afforded DFEH under California law, and the notice of the content of the

2

complaints given to LSAC prior to the initiation of its enforcement action.

3

California’s Fair Employment and Housing Act empowers DFEH “to receive, investigate,

Gov’t Code § 12930(f). The Act contains a specific procedure for DFEH to use in investigating a

6

complaint. Broadly speaking, the act allows “any person claiming to be aggrieved by an alleged

7

unlawful practice” to “file with the department a verified complaint” setting “forth the particulars”

8

of “the unlawful practice complained thereof.” Cal. Gov’t Code § 12960(b). In situations where

9

“an unlawful practice alleged in a verified complaint adversely affects, in a similar manner, a group

10

or class of persons . . . the aggrieved person or the director may file the complaint on behalf and as

11
For the Northern District of California

and conciliate complaints” that allege violations of law within the scope of its jurisdiction. Cal.

5

United States District Court

4

representative of such a group or class.” Cal. Gov’t Code § 12961. Upon receiving “any complaint

12

alleging facts sufficient to constitute a violation of any of the provisions of this part,” DFEH is

13

directed to “make [a] prompt investigation.” Cal. Gov’t Code § 12963. If DFEH determines that the

14

“complaint is valid, the department shall immediately endeavor to eliminate the unlawful . . .

15

practice complained of by conference, conciliation, and persuasion.” Cal. Gov’t Code § 12963.7. If

16

this non-judicial reconciliation process fails to resolve the complaint, DFEH may issue a “written

17

accusation” and require “the respondent to answer the charges at a hearing.” Cal. Gov’t Code §

18

12965. As with all other aspects of the Fair Employment and Housing Act, the investigatory and

19

adjudicatory procedure is to be “construed liberally for the accomplishment of the purposes of [the

20

Act].” Cal. Gov’t Code § 12993(a).

21

Construing DFEH’s statutory scheme broadly, the Ninth Circuit has held that claims not

22

originally brought in verified complaints may nonetheless be brought in subsequently when they are

23

“like or reasonably related to” the initial allegations. Rodriguez v. Airborne Express, supra, 265

24

F.3d at 897. Adopting a ‘relation-back’ theory as articulated by the Fifth Circuit in Sanchez v.

25

Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), the Ninth Circuit in Rodriguez held that new

26

accusations of wrongdoing could be added later to a DFEH complaint “on the principle that the

27

proper scope of the charge is determined by facts alleged in the original complaint, not the legal

28

theory originally attached to those facts.” Rodriguez, 265 F.3d at 899. In that case, however, the

16

1

court rejected an argument that a complainant’s new claim of “disability discrimination may

2

properly be related back to his original complaint alleging discrimination on the ground that [he]

3

was Mexican-American.” Id. The court held that while “factual allegations of the original

4

complaint, rather than the legal theory, establish the proper boundaries of the charge,” those initial

5

“factual allegations must be able to bear the weight of the new theory added by amendment.” Id.

6

In the instant case, each of the Complainants’ recitation of the facts in their claims makes

7

quite clear that they wish to challenge LSAC’s conduct on the basis of disability discrimination.

8

That the verified complaints received by DFEH did not explicitly identify the ADA as the legal basis

9

of their theories for recovery is not dispositive since it is the “factual allegations of the original
complaint, rather than the legal theory” that controls. Rodriguez, 265 F.3d at 899. Thus, in light of

11
For the Northern District of California

United States District Court

10

the standard set by the court in Rodriguez, LSAC’s argument that it was improper “for DFEH to

12

include in the Complaint any ADA-based claim” cannot be accepted. See Mot. to Dismiss at 12.

13

Nor can it be maintained that, on the basis of the facts alleged in the verified complaints, “it was

14

improper for DFEH to include claims that challenge the guidance that LSAC provides to

15

professionals who submit evaluations in support of an accommodation request,” or to include claims

16

challenging “LSAC’s documentation requirements for individuals requesting accommodations,”

17

Def’s Motion at 12. The record demonstrates quite clearly that the original verified complaints

18

received by DFEH challenged, at least in part, LSAC’s allegedly discriminatory documentation

19

procedures. See Compl., Ex. 2 (Verified Complaint of Nicholas Jones) (alleging a denial of

20

reasonable accommodations because of disability in connection with LSAC’s documentation

21

requirements); Compl. ¶ 148 (“Mr. Quan contested LSAC’s need for additional documentation,

22

asserting that it was unnecessary, unaffordable, and burdensome.”), ¶¶ 182-183 (challenging

23

relevance of LSAC’s Guidelines for Documentation of Cognitive Impairments).

24

LSAC asserts that a discrimination claim involving someone who has been denied reasonable

25

accommodations on the LSAT is not “like or reasonably related to” a discrimination claim by

26

someone who received accommodations and objects to LSAC’s “flagging” policy. That argument

27

also lacks merit. The relationship between denying individuals accommodations on the LSAT and

28

discriminating against disabled individuals by “flagging” their test scores is not as attenuated as

17

265 F.3d at 898 (holding that plaintiff’s original complaint with the DFEH alleging race-based

3

discrimination could not be extended to include disability discrimination); Winter v. Correction

4

Corp. of America, 2009 WL 1796309, at *4 (S.D. Cal. Jun. 24, 2009) (holding that plaintiff’s claims

5

about disability were not like or reasonably related to race/color-based discrimination). The ADA

6

claims alleged by DFEH all fall within the general scope of the claim that Defendant failed to

7

provide reasonable accommodations to test-takers of a standardized exam. Flagging an individual’s

8

test results because they received some form of testing accommodations could constitute a de facto

9

denial of accommodations to the extent that flagging results in the LSAT not being offered “in a

10

place and manner accessible to persons with disabilities.” 42 U.S.C. § 12189. Likewise, to the

11
For the Northern District of California

discrimination claims previously held not “reasonably related” by the courts. See e.g. Rodriguez,

2

United States District Court

1

extent that flagging erects a de facto barrier to applicants receiving accommodations because it

12

“intimidate[s] them not to request accommodations” or “punishes them for doing so,” that also

13

amounts to an allegation that LSAC’s practice discriminates against disabled test takers on account

14

of their disability. Breimhorst v. Educ. Testing Serv., 2000 WL 34510621 (N.D. Cal. Mar. 27,

15

2000). Unlike the claims advanced in Rodriguez and Winter, the claims in Plaintiff’s state court

16

complaint have not markedly shifted from one type of discriminatory behavior (e.g. on the basis of

17

race) to another (e.g. on the basis of disability). Rather, all five claims advanced by DFEH involve

18

the same kind of improper conduct – the denial of reasonable accommodations on a standardized test

19

on account of disability. This is enough to satisfy the “like or reasonably related standard” set out in

20

Rodriguez.

21

LSAC’s final challenge to DFEH’s ability to bring the specific ADA causes of action

22

advanced in its complaint flows from FEHA’s “conciliation” provision. Cal. Gov’t Code § 12963.7

23

provides that where DFEH determines that a “complaint is valid, the department shall immediately

24

endeavor to eliminate the unlawful . . . practice complained of by conference, conciliation, and

25

persuasion.” LSAC’s motion argues that DFEH failed engage in good faith conciliation as required

26

by statute, and as a consequence cannot issue a written accusation without first exhausting that

27

requirement. Def’s Motion at 12. This argument is unsupported by the language of FEHA, the

28

cases interpreting it, and the facts of this case.

18

1

The use of the permissive word endeavor in § 12963.7, on its face, undercuts any reading of

2

this section that would impose conciliation as a necessary prerequisite to issuing a written

3

accusation. Cal. Gov’t Code § 12965(a), which states that “[i]n the case of failure to eliminate an

4

unlawful practice under this part through conference, conciliation, or persuasion, or in advance

5

thereof if circumstances warrant, the director in his or her discretion may cause to be issued in the

6

name of the department a written accusation,” also indicates that conciliation is not required in every

7

case. Id. (emphasis added).

8
9

Further, in both Motors Ins. Corp. v. Div. of Fair Employment Practices, and DFEH v. Hoag
Memorial Hospital Presbyterian, the California Court of Appeal and the Fair Employment and
Housing Commission have confirmed that conciliation under FEHA is not a condition precedent to

11
For the Northern District of California

United States District Court

10

filing suit. See Motors Ins. Corp. v. Div. of Fair Employment Practices, 118 Cal. App. 3d 209, 224

12

(Cal. Ct. App. 1981) (DFEH is able “to file an accusation within the statutorily prescribed time even

13

if it has not obtained optimum results from its investigation or its efforts at conciliation”); In the

14

Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v.

15

HOAG MEMORIAL HOSPITAL PRESBYTERIAN, Case No. FEP82-83 K9-011se L-30469 85-10,

16

1985 WL 62889 at *8 (Aug. 1, 1985) (“Neither is there any jurisdictional requirement that the

17

Department, in each instance, engage in conciliation efforts, formally or informally, before issuing

18

an accusation.”).

19

Finally, the Court notes that DFEH did in fact engage in a day-long conciliation meeting on

20

February 3, 2012, where it “presented LSAC with a detailed settlement demand which included

21

notice of all the unlawful policies that the DFEH intended to pursue, including the issues of

22

mitigation, annotation or flagging, and excessive documentation.” Declaration of Susan Saylor

23

(Docket No. 40, Ex.1) (“Saylor Decl.”) ¶ 11. The Court, therefore, rejects LSAC’s argument that

24

the “conciliation” provision in § 12963.7 deprives DFEH of jurisdiction to pursue its complaint in

25

this matter.

26

D.

27
28

First Cause of Action
DFEH’s First Cause of Action states that LSAC violated the rights of class members under

FEHA, the Unruh Act, and the ADA “by requiring applicants to take the medications prescribed for

19

1

their disabilities while being evaluated for accommodations or explain their failure to do so.”

2

Compl. ¶¶ 187-192. This requirement, they argue, violates the ADA’s directive that

3

“determination[s] of whether an impairment substantially limits a major life activity shall be made

4

without regard to the ameliorative effects of mitigating measures such as . . . medication.”6 42

5

U.S.C. § 12102(4)(E)(1)(i)(I).

6

LSAC, in turn, argues that DFEH’s First Cause of Action fails to state a claim under Rule 12

7

(b)(6) for two reasons. First, LSAC asserts that “the language relied upon by DFEH is simply a rule

8

of construction that courts are to use in determining whether someone is disabled within the meaning

9

of the ADA.” Def’s Motion at 14. Under it, no “private right of action” exists such that the
Defendant could “be separately sued for violating the ADA’s definition of disability.” Id. (internal

11
For the Northern District of California

United States District Court

10

quotation marks omitted). Second, LSAC contends that DFEH’s claim is “based upon an incorrect

12

factual premise.” Id. Contrary to Plaintiffs’ allegations, LSAC asserts that it never “require[d]”

13

individuals who requested accommodations to “take the medications prescribed for their disabilities

14

while being evaluated for accommodations or explain their failure or refusal to do so.” Id. Rather,

15

LSAC “simply suggests” that professional evaluators of these applicants conduct their evaluations

16

while the applicants are taking their medications on the assumption that the applicant would be

17

taking the same medication while sitting for their LSAT exam. Id. If an evaluator chooses not to

18

examine an applicant while they are taking their medications, LSAC “simply asks the evaluator to

19

provide an explanation” of that decision. Id. These two arguments will be addressed in turn.

20

1.

21

In support of its assertion that there is no private right of action for “the definition of

22

disability” violation because the text of the statute grants no such remedy, LSAC cites Cort v. Ash,

23

422 U.S. 66, 78-85 (1975) (discussing relevant factors in determining whether a private remedy is

24

implicit in a statute not expressly providing one), Northstar Fin. Advisors, Inc. v. Schwab

25

Investments, 615 F.3d 1106, 1115-22 (9th Cir. 2010) (discussing whether there is a private right to

26

enforce § 13(a) of the Investment Company Act of 1940), and In re Digimarc Corp. Derivative

No Private Right of Action

27
6

28

“A physical or mental impairment that substantially limits one or more major life
activities” constitutes a disability under the ADA. 42 U.S.C. § 12102(1)(A).

20

1

Litig., 549 F.3d 1223, 1229-33 (9th Cir. 2008) (reviewing whether district court erred in determining

2

that provision of the Sarbanes–Oxley Act does not contain a private right of action). These cases

3

generally discuss how to determine whether a statute implicitly provides for a private right of action

4

when the statutory text does not expressly grant such a remedy. LSAC’s argument is meritless for

5

several reasons.

6

First, it is undisputed that FEHA authorizes the DFEH to enforce the Unruh Act. See Cal.

7

Gov. Code § 12930. As noted above, the Unruh Act incorporates the substantive standards of the

8

ADA and creates a private right of action as a matter of state law. Whether the ADA itself provides

9

a private cause of action under federal law does not affect enforcement of the Unruh Act – a state

11
For the Northern District of California

United States District Court

10

statute governed by its own enforcement mechanism.
Second, even if the analysis here were governed by the existence of a right of action directly

12

under the ADA, LSAC’s argument lacks merit. There is no need to imply a private right of action

13

under Cort v. Ash because the ADA explicitly provides for a private right of action under §

14

12188(a)(1). That statute provides “remedies . . . to any person who is being subjected to

15

discrimination on the basis of disability in violation of this subchapter.” LSAC makes no

16

convincing argument why the rights guaranteed under § 12189 are not enforceable under §

17

12188(a)(1).

18

Instead, LSAC seems to argue that § 12102(4)(E)(1)(i)(I) which broadened the definition of

19

“disability” under the ADA is merely definitional and does not provide a basis for a private right of

20

action. LSAC misconstrues the gravamen of DFEH’s complaint.

21

Title III of the ADA states that “any person that offers examinations or courses related to

22

applications, licensing, certification, or credentialing for secondary or post-secondary education,

23

professional, or trade purposes shall offer such examinations or courses in a place and manner

24

accessible to persons with disabilities or offer alternative accessible arrangements for such

25

individuals.” 42 U.S.C. § 12189. “The purpose of this section is to assure that persons with

26

disabilities are not foreclosed from educational, professional, or trade opportunities because an

27

examination or course is conducted in an inaccessible site or without an accommodation.” Enyart v.

28

Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011) cert. denied, 132 S.

21

1

Ct. 366 (2011) (quoting H.R.Rep. No. 101–485(III), at 68–69 (1990), reprinted in 1990

2

U.S.C.C.A.N. 445, 491–92.). Proof of a violation of § 12189 and the right to an accommodation

3

thereunder first turns on the threshold question of whether the complainant is a person with a

4

“disability.” See Agranoff v. Law Sch. Admission Council, Inc., 97 F. Supp. 2d 86, 87 (D. Mass.

5

1999) (“The Americans With Disabilities Act (ADA) specifically requires private organizations that

6

offer educational examinations to make them available in a manner accessible to persons with

7

disabilities.”) (internal quotation marks omitted). “Disability” is defined in § 12102 as “a physical

8

or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §

9

12102(1)(A). In 2008, the United States Congress enacted the ADA Amendments Act of 2008
(ADA Amendments), Pub. L. 110-325, and broadened the definition of “disability” by providing

11
For the Northern District of California

United States District Court

10

that the “determination of whether an impairment substantially limits a major life activity shall be

12

made without regard to the ameliorative effects of mitigating measures such as . . . medication.” §

13

12102(4)(E)(i)(I) (emphasis added). Requiring applicants to take prescribed medication while being

14

evaluated for accommodations does not simply contravene a definition; it can have the legal effect

15

of erroneously and wrongfully denying an applicant the legal status of a person with a disability, and

16

thereby deprive them of the right to accommodations to which he or she would otherwise be entitled

17

under § 12189. Hence, the alleged conduct of LSAC not only contravenes the definition of

18

disability under § 12102(4)(E)(i)(I); it can cause the deprivation of substantive rights under § 12189.

19

2.

20

Turning to LSAC’s charge that this First Cause of Action should be dismissed for failure to

21

state a claim under Fed. R. Civ. P. 12(b)(6) because it is “based upon an incorrect factual premise,”

22

the Court finds this argument to be unfounded. See Def’s Motion at 14. As noted above, LSAC

23

denies that it requires individuals seeking testing accommodations to take their prescribed medicines

24

while being evaluated for accommodations or explain their failure to do so. See id. at 14; Def’s

25

Reply at 7. LSAC’s argument reduces to a dispute over evidentiary facts. When considering a

26

motion to dismiss under Rule 12(b)(6), “all allegations of material fact are taken as true and

27

construed in the light most favorable to the nonmoving party.” Silvas v. E*Trade Mortg. Corp., 514

28

F.3d 1001, 1003 (9th Cir. 2008). DFEH supported its First Cause of Action with well-pleaded facts

Incorrect Factual Premise

22

accommodations request whether or not they took prescribed medications during medical

3

evaluations of their condition, and if not, to explain their failure to do so. See Compl. ¶ 55. LSAC

4

counters this allegation with an invitation to view certain documents on its website; an invitation

5

which the Court declines to take at the 12(b)(6) stage. As a general rule, “a district court may not

6

consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los

7

Angeles, 250 F.3d 668, 688 (9th Cir. 2001). There are two exceptions to this general rule for

8

materials that the “plaintiff’s complaint necessarily relies on” whose “authenticity ... is not

9

contested,” and materials that are of “public record.” Id. at 688-689. Neither exception applies to

10

LSAC’s website. As such, LSAC’s motion to dismiss DFEH’s First Cause of Action is DENIED.

11
For the Northern District of California

in the complaint. It alleges, among other things, that LSAC requires applicants to disclose in an

2

United States District Court

1

E.

12

Second Cause of Action
DFEH’s Second Cause of Action argues that LSAC’s policy of flagging score reports of

13

individuals receiving additional time fails to ensure that the LSAT measures aptitude, rather than

14

disability, in violation of the duties imposed on test providers under Title III of the ADA. Compl. ¶¶

15

193-195. As discussed above, § 12189 requires test providers like LSAC to offer ADA-governed

16

examinations “in a place and manner accessible to persons with disabilities or offer alternative

17

accessible arrangements for such individuals.” 42 U.S.C. § 12189. The Department of Justice,

18

which is charged with issuing regulations to carry out Title III’s provisions, see 42 U.S.C. §

19

12186(b), has interpreted § 12189 as requiring test providers to administer ADA-governed

20

examinations:

21
22
23

so as to best ensure that, when the examination is administered to an
individual with a disability that impairs sensory, manual, or speaking
skills, the examination results accurately reflect the individual’s
aptitude or achievement level or whatever other factor the examination
purports to measure, rather than reflecting the individual’s impaired
sensory, manual, or speaking skills.

24
25

28 C.F.R. § 36.309(b)(1)(I). DFEH argues on the basis of these two provisions that LSAC’s

26

“blanket policy of annotating scores taken under extended time conditions” communicates “to law

27

schools that it does not know whether or not the applicant’s exam results accurately reflect aptitude

28

or achievement, and, as such, run afoul of the ADA.” Compl. ¶ 195. LSAC counters that neither the

23

1

statute nor the regulation “prohibit the psychometrically sound practice of annotating scores that are

2

achieved with extra testing time” or address “the manner in which scores are reported.” Def’s

3

Motion at 15-16.

4

The question presented under this cause of action is relatively novel in ADA law, as

5

demonstrated by the paucity of cases cited by either party. The sole reported case directly on point

6

is Doe v. Nat’l Bd. of Med. Examiners, 199 F.3d 146 (3d Cir. 1999). Doe involved a challenge

7

brought by a medical student with multiple sclerosis against the National Board of Medical

8

Examiners (NBME), claiming that the NBME’s practice of flagging accommodated scores on the

9

United States Medical Licensing Examination (USMLE) violated Title III of the ADA. On appeal
from the district court’s grant of a preliminary injunction, the Third Circuit held that § 12189’s

11
For the Northern District of California

United States District Court

10

direction that exams be offered “in a place and manner accessible to persons with disabilities” does

12

not “ipso facto” prohibit NBME from flagging test results. Doe v. Nat’l Bd. of Med. Examiners, 199

13

F.3d at 149. The court held that neither the ADA nor its implementing regulations require scores

14

received with testing accommodations to “be declared psychometrically comparable to the scores of

15

examinees who take the test under standard conditions.” Id. at 156. “In the absence of a statutory

16

proscription against annotating the test scores of examinees who receive accommodations,” the court

17

stated, “we do not view the annotation on Doe’s score . . . as itself constituting a denial of access”

18

under Title III. Id. The court noted, however, that the record before it contained “conflicting expert

19

testimony regarding the comparability of time-accommodated scores to scores achieved under

20

standard conditions.” Id. at 151. It posited that had the plaintiff demonstrated “either that his scores

21

are psychometrically comparable to the scores of candidates who take the test under standard time

22

conditions, or that his scores will be ignored by the programs to which they are reported, he might

23

have demonstrated a reasonable likelihood of success on this claim,” and thereby preserved his

24

preliminary injunction against NBME. Id. at 156-157. “On the current record,” however, the court

25

found that Doe failed to meet his evidentiary burden. Id. at 157. The Third Circuit, therefore,

26

placed the burden on the plaintiff to prove the scores were “psychometrically comparable” in order

27

to invalidate flagging.

28

24

1

In an unreported decision, Judge Orrick in this District took a slightly different view of this

challenge brought by plaintiffs’ regarding the Educational Testing Service’s (ETS) practice of

4

“flagging test score reports for test takers who obtained accommodations for their disabilities to

5

indicate that the scores were obtained under special conditions.” Breimhorst v. Educ. Testing Serv.,

6

2000 WL 34510621 at *1. Ruling on ETS’s motion for a judgment on the pleadings, Judge Orrick

7

construed the applicable statutes and regulations as requiring test providers “to take steps to best

8

ensure that the tests equally measure the skills of disabled and nondisabled test takers.” Id. at *5. In

9

light of the ADA’s goal to “assure equality of opportunity for disabled people,” id. at *5 (citing 42

10

U.S.C. § 12101(8)), the court refused to “focus narrowly on the ability of disabled people to take [a]

11
For the Northern District of California

question. Breimhorst v. Educ. Testing Serv., 2000 WL 34510621 (N.D. Cal. 2000),7 concerned a

3

United States District Court

2

test” and instead declared, “to fulfill the goals of the ADA, the test itself must allow disabled people

12

to demonstrate their true abilities.” Id. at *5. The court found that “§ 36.309(b)(1) [of Title 28 of

13

the C.F.R.] imposes a duty on test providers to best ensure that their tests are selected and

14

administered to equally measure the abilities of disabled and nondisabled test takers.” Id. (emphasis

15

added). Importantly, “if test providers meet this burden, then there would be no reason to flag the

16

test results of disabled test takers who receive accommodations.” Id. (emphasis added). Judge

17

Orrick acknowledged that “it may be that there is no way to ensure that the test results are precisely

18

equivalent,” and in such a case, even though a test provider “may have taken steps to best ensure

19

that the results are equal, the results may still differ so significantly that flagging is appropriate.” Id.

20

However, he declined to render an opinion on the matter, recognizing that it was “an issue of fact . . .

21

and not a matter to be decided on a motion for judgment on the pleadings.” Id. Importantly Judge

22

Orrick placed the burden of proving the “best ensure” standard on the test providers.

23

In the instant case, the Second Cause of Action alleges that LSAC failed to carry its burden.

24

It alleges that LSAC adhered to a blanket policy of flagging without knowing whether the

25

applicant’s exam results accurately reflect aptitude or achievement. Compl. ¶ 195. While the

26
27
28

7

A copy of this decision appears in Def’s Notice of Authority (Docket No. 21). While not
published, the decision does not contain the words “Not for Citation” as specified in Civil Local
Rule 7-14 for marking uncitable orders or opinions.

25

1

complaint does not allege that the scores are in fact “psychometrically equivalent,” a fact Plaintiff

2

would have to plead and prove under Doe, this Court is persuaded that Judge Orrick’s interpretation

3

in Breimhorst of the relevant laws is correct. Under Breimhorst, the test provider has the burden of

4

proving it best ensured that the test equally measured abilities of disabled and non-disabled test

5

takers. That interpretation is consistent with § 12189 which places a general duty on test providers

6

to offer accessible examinations or offer alternative accessible arrangements, and the DOJ’s

7

regulation at 28 C.F.R. § 36.309(b)(1)(I) which likewise requires test providers to “best ensure” that

8

the examination accurately reflects aptitude or achievement levels, not impaired skills. Judge

9

Orrick’s interpretation is also consistent with the Ninth Circuit’s decision in Enyart v. Nat’l
Conference of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011) cert. denied, 132 S. Ct. 366 (U.S.

11
For the Northern District of California

United States District Court

10

2011), applying § 12189. In Enyart, the Ninth Circuit rejected an argument that the ADA required

12

test providers to provide “reasonable accommodations” under § 12189 instead of adhering to the

13

“best ensure” standard set out in the Justice Department’s regulations at 28 C.F.R. § 36.309(b)(1)(I).

14

The court held that:

15

one reasonable reading of § 12189’s requirement that entities make
licensing exams accessible is that such entities must provide disabled
people with an equal opportunity to demonstrate their knowledge or
abilities to the same degree as nondisabled people taking the exam—in
other words, the entities must administer the exam so as to best ensure
that exam results accurately reflect aptitude rather than disabilities.

16
17
18
19

Enyart, 630 F.3d at 1162. While the precise contours of the “best ensure” standard are not clear, it is

20

more exacting than a “reasonableness” standard. See Enyart, 630 F.3d at 1161. See also Bonnette v.

21

Dist. of Columbia Court of Appeals, 796 F. Supp. 2d 164, 184–85 (D.D.C. July 13, 2011); Elder v.

22

Nat’l Conference of Bar Examiners, 2011 WL 672662, at *6 (N.D. Cal. 2011); Jones v. Nat’l

23

Conference of Bar Examiners, 801 F. Supp. 2d 270, 284 (D. Vt. 2011).

24

Since this question is before the Court on a Rule 12(b)(6) motion, the Court DENIES

25

LSAC’s motion to dismiss this cause of action.

26

F.

27
28

Third Cause of Action
DFEH’s Third Cause of Action argues that LSAC’s flagging policy unlawfully coerced and

discouraged potential test-takers from seeking testing accommodations or punished those who

26

provision of the ADA makes it unlawful “to coerce, intimidate, threaten, or interfere with any

3

individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,

4

or on account of his or her having aided or encouraged any other individual in the exercise or

5

enjoyment of, any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b). In support of its

6

motion to dismiss, LSAC repeats the arguments it made earlier that “nothing in the ADA or its

7

implementing regulations . . . prohibit the psychometrically sound practice of annotating test

8

scores,” and therefore LSAC’s flagging practice cannot give rise to a claim that a “right granted or

9

protected by [the ADA]” has been violated. See Def’s Motion ( citing 42 U.S.C. § 12203(b)). This

10

claim, based as it is on the premise that score ‘flagging’ cannot give rise to an ADA violation fails

11
For the Northern District of California

received accommodations in violation of 42 U.S.C. § 12203. See Compl. ¶¶ 200-201. That

2

United States District Court

1

for the reasons discussed above.

12

LSAC also calls into question whether DFEH has adequately pled its claim of coercion and

13

interference with sufficient facts to survive a challenge under Rule 12(b)(6). In the context of a Rule

14

12(b)(6) motion, “a complaint need not contain detailed factual allegations,” but it “must plead

15

‘enough facts to state a claim to relief that is plausible on its face.’” Cousins, 568 F.3d at 1067 (9th

16

Cir. 2009). Facial plausibility is met when “the plaintiff pleads factual content that allows the court

17

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

18

Iqbal, 129 S. Ct. 1937, 1949 (2009). As noted above, the complaint states that LSAC’s practice of

19

‘flagging’ score reports of individuals who received disability related accommodations violates §

20

12189. As to whether that practice also intimidates disabled test-takers from seeking

21

accommodations or punished those who received accommodations, DFEH has also pled sufficient

22

facts to satisfy the standard set in Cousins and Iqbal. Paragraph 201 of the complaint alleges, among

23

other things, that “flagging” score reports discourages applicants from seeking an accommodation

24

and punishes those who do receive accommodations. As in Breimhorst, DFEH states a claim that

25

flagging can “coerce, intimidate, threaten, or interfere with” the enjoyment of an individual’s right’s

26

under Title III of the ADA, 42 U.S.C. § 12203(b). 2000 WL 34410621 at *7. LSAC’s practice of

27

‘flagging’ necessarily “announces an individual’s disability above all else,” and this practice “cannot

28

be reconciled with the ADA’s mandate that testing entities must administer exams so as to best

27

1

ensure that exam results reflect individuals’ skills and achievement level and not their disability.”

2

See Statement of Interests of the United States (Docket No. 29) at 13. This result, in itself,

3

“interfere[s] with any individual in the exercise or enjoyment of, or on account of his or her having

4

exercised or enjoyed . . . any right granted or protected by this chapter.” 42 U.S.C. § 12203(b).

5
6
7

The Court, therefore, DENIES LSAC’s motion to dismiss DFEH’s Third Cause of Action.
G.

Fourth Cause of Action
DFEH’s Fourth Cause of Action argues that LSAC breached its duty to make the LSAT

accommodations in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv). Section

10

36.309(b)(1)(iv) of the ADA’s implementing regulations state “any private entity offering an

11
For the Northern District of California

accessible to disabled individuals by requiring excessive documentation and by denying reasonable

9

United States District Court

8

examination covered by this section must assure that any request for documentation, if such

12

documentation is required, is reasonable and limited to the need for the modification,

13

accommodation, or auxiliary aid or service requested. Id. LSAC does not challenge this cause of

14

action insofar as it alleges that LSAC denied “a reasonable accommodation to each real party in

15

interest.” Def’s Motion at 17. It does, however, challenge the sufficiency of the first half of

16

DFEH’s claim that it violated rights of the Complainants by “requiring excessive amounts of

17

documentation.” See id.

18

LSAC advances two arguments in support of this component of its motion to dismiss. First,

19

it posits that “the regulation that DFEH relies upon did not become effective” until after “LSAC

20

processed twelve of the Complainants’ requests for accommodations,” and cannot, therefore, “be the

21

source of claimed violation of their rights.” Def’s Motion at 18. Second, LSAC renews its

22

argument that no private right of action exists to enforce the regulatory mandate in a slightly

23

modified form.

24

Taking the second argument first, LSAC argues that DFEH cannot rely on 28 C.F.R. §

25

36.309(b)(1)(iv) as a “source of a claimed violation” of the ADA because “it imposes obligations

26

that are not found in the statutory provision it purports to implement.” Def’s Motion at 18. LSAC

27

cites Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009) and Abrahams v. MTA Long Island

28

Bus, 644 F.3d 110 (2d Cir. 2011) broadly for the proposition that “[o]nly those regulations

28

1

effectuating the statute’s clear prohibitions or requirements are enforceable through the statute’s

2

private right of action.” Id. Each of these cases addressed whether plaintiffs could state a cause of

3

action under the ADA for failure to carry out a provision of DOJ’s ADA regulations; Lonberg

4

addressed a public entity’s obligation to create a “transition plan” to achieve program accessibility

5

as required by 28 C.F.R. § 35.150(d), and Abrahams addressed procedural requirements mandated

6

by the Department of Transportation in 49 C.F.R. § 37.137(c) that public entities permit ongoing

7

public participation in developing and assessing paratransit services. In each case, the court held

8

that the regulation at issue could not be enforced in a private right of action because a public entity’s

9

violation of the regulation did not amount to a violation of the ADA. See Lonberg, 571 F.3d at 851
(“The existence or non-existence of a transition plan does not, by itself, deny a disabled person

11
For the Northern District of California

United States District Court

10

access to a public entity’s services, nor does it remedy the denial of access.”); Abrahams, 644 F.3d

12

at 119 (“by its own terms, the ‘ongoing requirement’ of 49 C.F.R. § 37.137(c) has a broader

13

application than the implementation of an initial plan or the submission of annual updates [as

14

required under 42 U.S.C. § 12143] . . . [t]ellingly, a public entity may be in full compliance with §

15

12143’s public participation requirements, while simultaneously violating § 37.137(c)’s ongoing

16

public participation requirement.”).

17

Unlike Lonberg and Abrahams, the regulation at issue in this case does not create an

18

obligation that extends beyond the statutory requirements of the ADA. Section 12189 requires test

19

providers to offer their examinations “in a place and manner accessible to persons with disabilities

20

or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189. Failure to do

21

so gives rise to a private right of action “to any person who is being subjected to discrimination on

22

the basis of disability in violation of this subchapter.” 42 U.S.C. § 12188(a)(1). The Ninth Circuit

23

has previously considered the meaning of § 12189’s language and held that “[b]ecause § 12189 is

24

ambiguous with respect to its requirement that entities administer licencing exams in a manner

25

“accessible” to individuals with disabilities, we defer to DOJ’s interpretation of the statute so long as

26

that interpretation is based upon a permissible construction of the statute.” Enyart v. Nat’l

27

Conference of Bar Examiners, Inc., 630 F.3d 1153, 1162 (9th Cir. 2011) (Enyart rejected a similar

28

29

1

challenge brought by a testing entity against a DOJ regulation that purportedly imposed an

2

obligation beyond § 12189’s statutory mandate).

3

The regulation at issue here requires “any request for documentation, if such documentation

4

is required,” to be “reasonable and limited to the need for the modification, accommodation, or

5

auxiliary aid or service requested.” 28 C.F.R. § 36.309(b)(1)(iv). LSAC may be correct in asserting

6

that the language of § 12189 does not explicitly address “limitations regarding documentation,” see

7

Def’s Motion at 17:28-18:3, but it does mandate that examinations be offered “in a place and

8

manner accessible to persons with disabilities.” Unlike the regulations at issue in Lonberg and

9

Abrahams which clearly imposed regulatory mandates in excess of statutory text, excessive or
unreasonable documentation could deny an applicant’s access to an examination in violation of the

11
For the Northern District of California

United States District Court

10

ADA. In its Notice of Proposed Rulemaking preceding the agency’s 2010 revisions to 28 C.F.R.

12

Part 36, DOJ noted how “[t]hrough its enforcement efforts, the Department has discovered that the

13

requests made by testing entities for documentation regarding the existence of an individual’s

14

disability and her or his need for a modification or an auxiliary aid or service are often inappropriate

15

or burdensome.” 73 Fed. Reg. 34508, 34539 (June 17, 2008). Thus, 28 C.F.R. § 36.309(b)(1)(iv) is

16

simply an interpretative regulation which clarifies and gives specific meaning to § 12189. It is true

17

that “[l]anguage in a regulation may invoke a private right of action that Congress through statutory

18

text created, but it may not create a right that Congress has not,” Alexander v. Sandoval, 532 U.S.

19

275, 291 (2001); however, § 36.309(b)(1)(iv) does not run afoul of that standard. Section

20

36.309(b)(1)(iv) does not create a new right; it merely delineates a concrete example of what

21

constitutes a denial of access under the ADA with regard to a testing provider’s documentation

22

requirements.

23

LSAC’s argument regarding the effective date of the regulation also fails. LSAC’s argument

24

implies that, absent the Justice Department’s regulation found at 28 C.F.R. § 36.309(b)(1)(iv), it

25

would not otherwise be required to limit its documentation requests to that which is “reasonable and

26

limited to the need for the modification” [testing accommodation in this context]. 28 C.F.R. §

27

36.309(b)(1)(iv). This misstates the law. As noted above, the obligation to refrain from imposing

28

inappropriate or burdensome requests for documentation in support of a testing accommodation

30

1

request, springs not from the Justice Department’s regulatory scheme, but from the ADA itself.

2

Section 12189 affirmatively requires test providers to offer examinations “in a place and manner

3

accessible to persons with disabilities.” 42 U.S.C. § 12189. As the Justice Department makes clear

4

in its Statement of Interests, for more than 20 years, the Department has interpreted this provision of

5

the ADA as inherently limiting “requests for documentation” made by test providers to that which is

6

“reasonable” and “limited to the need of the modification or aid requested.” See Statement of

7

Interests of the United States of America (Docket No. 29) at 10-11. Indeed, it codified this

8

interpretation in the preamble to its 1991 ADA regulations. See 56 Fed. Reg. 35544, 35573 (July

9

26, 1991). When the Department issued the regulation specifically enumerating this longstanding
interpretation of § 12189, it “merely sought to clarify testing entities’ responsibilities under [section

11
For the Northern District of California

United States District Court

10

12189]” in a way “that should lead to fewer misinterpretations of the requirements, more compliance

12

with the ADA, and less discrimination in testing.” Statement of Interests of the United States of

13

America at 11-12. The codification of this long standing interpretation at 28 C.F.R. §

14

36.309(b)(1)(iv) did not alter any existing rights or obligations; it merely clarified what those rights

15

and obligations under § 12189 are and have been. Contrary to Defendant’s argument, this regulation

16

is not the source of a claimed violation of complaints rights; the ADA is, and the regulation is

17

merely interpretive. See Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 135 (1936)

18

(explaining that agency rule interpreting a statute “is no more retroactive in its operation than a

19

judicial determination construing and applying a statute to a case in hand”).

20

For these reasons, the Court DENIES LSAC’s motion to dismiss DFEH’s Fourth Cause of

21

Action.

22

H.

23

Fifth Cause of Action
DFEH’s Fifth Cause of Action contends that LSAC’s policy of requiring excessive

24

documentation to support accommodation requests coerced and discouraged the real parties in

25

interest to this suit from seeking disability related accommodations in violation of 42 U.S.C. §

26

12203(b). Much like its Third Cause of Action, DFEH frames this claim on the belief that requiring

27

excessive documentation in violation of § 12189 operated in a manner that “coerce[d], intimidate[d],

28

31

1

threaten[d], or interfere[d]” with the plaintiffs’ enjoyment of their rights under the ADA. Compl. ¶

2

213.

3

LSAC’s motion to dismiss argues, in essence, that its actions were not coercive, intimidating,
or threatening because (1) it has a “right to request reasonable documentation” in support of an

5

accommodation request, and (2) DFEH merely disagrees with LSAC’s assessment of what

6

documentation was required under the ADA in order to grant plaintiffs’ requested accommodations.

7

See Def’s Motion at 19. DFEH does not dispute LSAC’s right to request reasonable documentation

8

under the ADA. DFEH does allege that LSAC exceeded that right in regard to the documentation

9

requests made of the plaintiffs in this case. See Compl. ¶¶ 211-216. Again, in the context of a

10

motion to dismiss under Rule 12(b)(6), the allegations of the complaint must be taken as true.

11
For the Northern District of California

United States District Court

4

LSAC’s second argument construes DFEH’s Fifth Cause of Action as, essentially, a

12

“disagreement” over factual issues as to whether Complainants sufficiently documented their need

13

for testing accommodations, and then states that “such disagreement cannot be converted into a

14

cause of action.” Def’s Motion at 19-20. The Court disagrees. This element of the Complaint

15

alleges that LSAC’s documentation policies and practices both coerced and discouraged the real

16

parties, from seeking accommodations on the LSAT, and punished those who did apply for

17

accommodations by subjecting them to excessive and capricious documentation requirements. The

18

complaint states a claim under § 12203(b).

19
20

As such, LSAC’s motion to dismiss DFEH’s Fifth Cause of Action is DENIED.
I.

Narrowing of The Class

21

LSAC next challenges DFEH’s authority to seek class relief under California’s Fair

22

Employment and Housing Act. Defendant argues that DFEH only has authority to seek relief on a

23

class basis where “an unlawful practice alleged in a verified complaint adversely affects, in a similar

24

manner, a group or class of persons of which the aggrieved person filing the complaint is a member,

25

or where such an unlawful practice raises questions of law or fact which are common to such a

26

group or class.” Def’s Motion at 20; see also Cal. Gov’t Code § 12961. LSAC contends that a class

27

action complaint may only include “similarly situated” individuals to those originally filing verified

28

complaints and may only address practices at issue in those original verified complaints. See id.

32

1

LSAC also asserts that DFEH must properly notify it of any class-based allegations, provide LSAC

2

the opportunity to address any allegedly unlawful actions and participate in conciliation discussions.

3

See id. To that end, LSAC contends that the notice it received was improper and that DFEH

4

insufficiently attempted to resolve the complaints in this matter through conciliation since the

5

conciliation process consisted of only a single meeting where a settlement payment was demanded.

6

LSAC’s narrow reading here of the class relief mechanism presented in the FEHA largely

during the course of investigating a verified complaint. As noted above, claims asserted by DFEH

9

that are “like or reasonably related to” the allegations set forth in the Notice of Class Action are

10

permissible under Rodriguez v. Airborne Express, supra, 256 F.3d 890. DFEH’s Notice of Class

11
For the Northern District of California

duplicates its earlier argument challenging DFEH’s jurisdiction to pursue claims that emerged

8

United States District Court

7

Action clearly stated that the agency was investigating claims that LSAC “engaged in unlawful

12

practices against [verified complainants] which were discriminatory on the basis of disability,” and

13

that its investigation would expand to include “all disabled individuals in the State of California who

14

have or will request a reasonable accommodation for the [LSAT], administered by the LSAC, and

15

who have or will be unlawfully denied such request” within the time period specified. Compl., Ex. 3

16

¶¶ 1-3. The fact that DFEH’s Notice of Class Action Complaint specifically mentions class

17

members who were denied accommodations does not necessarily preclude potential class members

18

who were granted accommodations on the LSAT from being “similarly situated.” Both groups of

19

individuals may have been impacted by LSAC’s allegedly unlawful practices in regards to

20

discrimination on the basis of a disability. For example, both those who were granted and denied

21

reasonable accommodations on the LSAT faced LSAC’s alleged unlawful practices of requiring

22

individuals to take their medication or submit a justification for failure to do so (first class cause of

23

action), LSAC’s failure to ensure that the exam measures aptitude rather than disability (second

24

class cause of action), and LSAC’s imposition of excessive documentation requirements (fourth

25

class cause of action). See Compl. ¶¶ 187-204. The claims of the class members are thus similar;

26

regardless of whether accommodations were denied or granted, their claims raise common questions

27

of law and fact.

28

33

1

On the facts pled in the complaint, the declarations submitted accompanying this motion, and

2

Ninth Circuit precedent in this area of law, the Court concludes the breadth of DFEH’s class claims

3

did not deprive LSAC of proper notice of the claims brought against it in this Complaint. Indeed,

4

one of the first verified complaints in this matter – that of Nicholas Jones – specifically placed

5

LSAC on notice that the scope of DFEH’s investigation would be conducted on a class basis. See

6

Compl., Ex. 2 (Verified Complaint of Nicholas Jones) (“I am making this complaint on behalf of

7

myself and all other disabled individuals, who have been, are now, or will in the future be similarly

8

aggrieved.”). That same verified complaint clearly indicates that LSAC’s documentation practices

9

were being called into question. See Id. Having already concluded that DFEH’s allegations
regarding LSAC’s flagging practice is “like or reasonably related to” the allegations originally

11
For the Northern District of California

United States District Court

10

presented in the verified complaints, the Court rejects LSAC’s argument that it did not receive

12

adequate notice of the scope of allegations that ultimately made their way into the Complaint.

13

LSAC further argues that DFEH has no need to proceed in this matter on a class basis. See

14

Def’s Motion at 21, Fn.7. LSAC states that a Notice of Investigation was sent to 311 individuals, 89

15

of whom consented to disclosure of their names to DFEH. Id. From those 89 names, LSAC decided

16

to seek relief on behalf of only seventeen individuals. Id. Thus, LSAC argues, DFEH has already

17

had a chance to review “applicable records” and identified viable claims. However, LSAC offers no

18

legal support for its assertion that DFEH’s decision to proceed on a class basis is impermissible. It

19

cites no cases or statutes that deprive DFEH of the ability to maintain a class complaint under the

20

facts of this case. Plaintiffs’ claims are all “within the scope of the administrative investigation

21

which can reasonably be expected to grow out of the [initial charges] of discrimination.” Rodriguez

22

v. Airborne Express at 897.

23

The Court therefore rejects LSAC’s arguments that the scope of DFEH’s proposed class

24

ought to be limited.

25

J.

Recovery of Damages Under the Unruh Act

26

LSAC asserts that DFEH may not recover the treble damages DFEH seeks under Cal. Civ.

27

Code § 52 for alleged violations of the Unruh Act. Def’s Motion at 21. Rather, LSAC argues that

28

DFEH’s damages claims are governed by Cal. Gov. Code § 12970. Id. at 22 (citing Dep’t of Fair

34

1

Empl. & Housing v. Marion’s Place, 2006 WL 1130912, at *12 (Cal. FEHC 2006)). As such, LSAC

2

claims that DFEH’s claims for treble damages and a minimum recovery of $4,000 per Unruh Act

3

violation pursuant to California Civil Code § 52 must fail as a matter of law. Def’s Motion at 22.

4

California Civil Code § 52(a) states that those who discriminate under the Unruh Act are

5

“liable for each and every offense for the actual damages, and any amount that may be determined

6

by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual

7

damage but in no case less than four thousand dollars ($4,000) . . . suffered by any person denied the

8

rights provided in Section 51, 51.5, or 51.6.” Cal. Civ. Code § 52(a). Notwithstanding this

9

provision, the California Fair Employment and Housing Commission (“FEHC”) has ruled that
actions before the Commission are governed not by § 52, but rather by Cal. Gov. Code § 12970,

11
For the Northern District of California

United States District Court

10

which authorizes the Commission to award damages in an amount different from that available

12

under § 52(a). See Dep’t of Fair Empl. & Housing v. Marion’s Place, 2006 WL 1130912, at *12

13

(Cal. FEHC 2006).

14

Importantly, DFEH’s complaint here is being heard in civil court and not in front of the

15

FEHC. Indeed, as DFEH points out in its papers, LSAC chose to remove the matter to civil court in

16

lieu of an FEHC hearing. Consequently, DFEH contends that LSAC is subject to a civil court’s

17

authority to award damages, and not damages as would be available before FEHC. Pl’s Opp. at 21.

18

LSAC offers two arguments attempting to rebut DFEH’s claim that § 52(a) governs an award

19

of damages in this case, but both are unpersuasive. LSAC contends that nothing in the statutory

20

provision allowing a party to have its claim heard in civil court rather than in front of the FEHC

21

includes a requirement that the parties “forego FEHA damages in favor of damages awarded under

22

the Unruh Act.” Def’s Reply at 15. In support of its argument that a court’s authority to award

23

damages ought to parallel the damages available before FEHC, LSAC cites Cal. Govt. Code §

24

12970(a)(3) which states that FEHC “may award the same damages ‘as may be available in civil

25

actions under this part.’” Id. (citing Cal. Gov’t Code § 12970(a)(3).

26

Despite LSAC’s arguments to the contrary, the amount of damages that can be awarded by

27

FEHC are simply not relevant to this action. While § 12970 and Marion’s Place may impose limits

28

on FEHC’s remedial authority, they do not purport to limit damages awardable in court. In actions

35

1

removed from FEHC to court via Cal. Gov. Code § 12965(c)(1), subsection (c)(3) provides that “[a]

2

court may grant as relief in any action filed pursuant to this subdivision any relief a court is

3

empowered to grant in a civil action brought pursuant to subdivision (b),” the provision of FEHA

4

involving suits in court for complaints that are not heard by the agency and for which a right-to-sue

5

notice has issued. That statute does not incorporate any limit on damages applicable under FEHA.

6

Courts may award aggrieved parties treble damages under the Unruh Act, see Cal. Civ. Code § 52.

7

No statutory provision prevents the Court from awarding similar damages in actions brought by

8

DFEH under 12965(b) and (c)(3).

9

K.

DFEH brought all five of its ADA claims against not only LSAC but also ten unnamed Doe

11
For the Northern District of California

United States District Court

10

Dismissal of Doe Defendants

Defendants . Compl. ¶ 5. DFEH asserts in the complaint that it is ignorant of the Doe Defendants

12

“true names or capacities,” but that it will amend the Complaint to include that information when it

13

is ascertained through the course of litigation. Id. DEFH states that each Doe Defendant was an

14

employee of LSAC during the time of the alleged unlawful conduct, and that each should be held

15

jointly and severally liable to the real parties in the action for damages. Id. ¶ 6. LSAC makes three

16

main arguments to support its assertion that the Doe Defendants should be dismissed from the

17

complaint. First, LSAC asserts that DFEH failed to plead “a single fact” regarding any alleged

18

misconduct by any of the Doe Defendants and therefore runs afoul of Fed. R. Civ. P. 8. Def’s

19

Motion at 22. Second, LSAC contends that no individual person offers the LSAT, only LSAC the

20

business entity does, and thus there is no possibility that an individual person could be held liable for

21

the ADA violations complained of in this action. Id. at 23. Third, LSAC claims that DFEH is

22

precluded from naming the Doe Defendants because no individuals were specifically named as

23

defendants in the original administrative complaints filed by the Complainants. Id. at 24.

24

LSAC cites Dydzak v. George, 2010 U.S. Dist. Lexis 144336 at *24 (C.D. Cal. 2010). In

25

Dydzak, a plaintiff brought suit against the State Bar of California as well as judges and other

26

attorneys involved in an alleged “conspiracy” which led to the plaintiff’s disbarment. See Id. at *6-

27

7. In addition to suing the State Bar itself, the plaintiff also named ten unnamed state bar

28

defendants, Does 1-10. Id. at *23. Because the complaint failed to allege specific factual matters or

36

1

acts that the unidentified individuals committed beyond a general assertion of their complicity in the

2

alleged wrongs, the court found that the claims against the Doe defendants failed to meet the

3

pleading standards set under Fed. R. Civ. P. 8 and dismissed the Doe defendants from the action.

4

See id. at *25.

5

DFEH has not submitted any legal authority or factual claims to rebut LSAC’s argument.

or all of the alleged ADA violations.” Pl’s Opp. at 22. Similar to the plaintiff in Dydzak, DFEH has

8

only named ten Doe Defendants in a cursory manner and has not pled any specific factual

9

allegations beyond the assertions that such defendants worked in some capacity for LSAC and are

10

somehow materially involved in LSAC’s alleged unlawful conduct. See Compl. ¶¶ 5-6. As such,

11
For the Northern District of California

Rather, DFEH merely states that it “may find” that other “entity defendants are responsible for some

7

United States District Court

6

DFEH has failed to meet the standard set forth by Fed. R. Civ. P. 8. Indeed, DFEH comes close to

12

conceding that it has no strong legal basis for retaining the Doe defendants when it “asks this

13

Court’s leave to retain its DOE allegations through the date of initial disclosures.” Pl’s Opp. at 22.

14

LSAC also argues that individual liability is unavailable as a remedy under the ADA claims

15

advanced by DFEH. See Def’s Motion at 23. Focusing on the second and fourth claims in DFEH’s

16

complaint, LSAC contends that claims against individuals are unavailable in this case under 42

17

U.S.C. § 12189, since, by its terms, this section can only apply to a person that “offers” a

18

standardized examination. See id. As the complaint reflects, no individual can offer the LSAT; only

19

LSAC offers the LSAT. Id. Although LSAC does not advance any direct legal support to show that

20

claims against individuals are not available under 42 U.S.C. § 12189, LSAC does support its

21

argument by citing to several cases where courts refused to impose remedies against individual

22

defendants under 42 U.S.C. § 12812(a), Title III’s public accommodation provision. See Def’s

23

Motion at 23. In Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002), the Third Circuit held that

24

individual college defendants did not “operate” Thiel College, a place of public accommodation, and

25

thus were not liable under Title III of the ADA. Emerson v. Thiel College, 296 F.3d at 189. See

26

also White v. Creighton Univ., 2006 WL 3419782 (D. Neb. Nov. 27, 2006) (no ADA liability found

27

under Title III because individual defendants do not ‘operate’ the university). In the absence of

28

contrary authority, the Court finds LSAC’s argument persuasive.

37

1

DFEH has failed to satisfy the pleading standard set forth by Fed. R. Civ. P. 8 regarding the

2

ten Doe Defendants, and has likewise failed adequately to demonstrate that its causes of action can

3

impose individual liability under the ADA. As such, the Court GRANTS LSAC’s motion to

4

dismiss with prejudice the ten Doe Defendants from the complaint.

5

IV.

CONCLUSION

6

For the reasons stated above, the Court hereby GRANTS Defendant’s motion to dismiss the

7

ten Doe Defendants from this action, and DENIES the remainder of Defendant’s motion to dismiss

8

in its entirety.

9

This order disposes of Docket No. 13.

11
For the Northern District of California

United States District Court

10
IT IS SO ORDERED.

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13

Dated: September 18, 2012

14

_________________________
EDWARD M. CHEN
United States District Judge

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