Toma v. University of Hawaii at Manoa
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADING WITH LEAVE TO AMEND re 24 MOTION for Judgment on the Pleadings filed by University of Hawaii.. Signed by MAGISTRATE JUDGE RICHARD L. P UGLISI on 10/23/2017. The Court GRANTS Defendant's Motion for Judgment on the Pleadings. Plaintiff shall file an amended complaint no later than October 31, 2017 (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNIVERSITY OF HAWAII,
CIVIL NO. 16-00499 RLP
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS WITH
LEAVE TO AMEND
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE PLEADINGS WITH LEAVE TO AMEND
On October 20, 2017, a hearing was held on Defendant’s
Motion for Judgment on the Pleadings, filed on August 16, 2017
ECF No. 24.
Brian K. Mackintosh, Esq. appeared on
behalf of Plaintiff; Derek T. Mayeshiro, Esq. appeared on behalf
After carefully reviewing the parties’
submissions, the arguments made by counsel at the hearing, and
the relevant legal authority, the Court GRANTS the Motion and
GRANTS Plaintiff leave to file a second amended complaint.
In his First Amended Complaint, Plaintiff alleges that
he matriculated as a medical student at the John A. Burns School
of Medicine, University of Hawaii at Manoa, in July 2005.
No. 7 ¶ 9.
Shortly after July 2005, Plaintiff began to
experience anxiety, depression, and inabilities to sleep or
Id. ¶ 10.
Plaintiff did not seek medical treatment for
these symptoms until July 2007.
Id. ¶ 11.
Beginning in 2007,
Plaintiff was under psychiatric care.
Id. ¶ 12.
Plaintiff took a medical licencing exam in July 2009
and did not pass.
Id. ¶¶ 14, 15.
In October 2009, Dr. Mary Ann
Antonelli, Director of the Office of Student Affairs at the
medical school, asked Plaintiff to appear before the Student
Standing and Promotion Committee to evaluate his academic
Id. ¶ 23.
In response, Plaintiff emailed Dr.
Antonelli about his depression and disability.
Id. ¶ 24.
Antonelli did not refer Plaintiff to the office for students with
disabilities, but accommodated Plaintiff by twice postponing
Plaintiff’s appearance before the committee.
Id. ¶¶ 26-27.
In December 2009, Plaintiff was clinically diagnosed
with major depression pursuant to the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV
TR) criteria for Major Depressive Episode.
did not respond immediately to treatment.
Id. ¶ 16.
Id. ¶ 17.
Plaintiff appeared before the Student Standing and
Promotion Committee on February 10, 2010.
Id. ¶ 29.
committee allowed Plaintiff to re-take the medical licencing exam
by April 28, 2010, to accommodate his disability.
Id. ¶ 30.
April 2010, Plaintiff’s treating psychiatrist advised Plaintiff
to take a medical leave of absence from school and not to take
the medical licencing exam.
Id. ¶ 31.
psychiatrist wrote a letter to the medical school on June 7,
2010, stating that she recommended a 4-6 month leave of absence
to accommodate Plaintiff’s depression.
Id. ¶ 32.
approved Plaintiff’s medical leave of absence on June 23, 2010.
Id. ¶ 33.
In August 2010, Plaintiff was diagnosed with
Id. ¶ 18.
Plaintiff’s depression and
hypothyroidism interfered with major life activities such as
concentrating, studying, and learning.
Id. ¶ 19.
On December 20, 2010, the new Director of the Office of
Student Affairs at the medical school, Dr. Richard Smerz, ordered
Plaintiff to attend a meeting before the Student Standing and
Promotion Committee to evaluate his academic progress on January
Id. ¶ 37.
Plaintiff met with Dr. Smerz on January 5,
2011, and informed him of his medical disabilities, including
depression and recently diagnosed hypothyroidism.
Id. ¶ 38.
Plaintiff’s major depression and hypothyroidism had begun to
respond to treatment by January 2011.
Id. ¶¶ 20, 39.
asked Dr. Smerz to continue Plaintiff’s medical leave to allow
time for his treatment to become fully effective, which Dr. Smerz
Id. ¶¶ 39, 40.
Dr. Smerz encouraged Plaintiff to
withdraw from medical school or face almost certain expulsion.
Id. ¶ 40.
Dr. Smerz also told Plaintiff that he needed to leave
to cope with his problems.
Id. ¶ 41.
Dr. Smerz did not
recommend or contact the office for students with disabilities.
Id. ¶ 43.
Plaintiff’s treating psychiatrist also contacted Dr.
Smerz to ask that Plaintiff be given continuing accommodation to
allow time for his treatment to become fully effective, which Dr.
Id. ¶¶ 44-45.
The Student Standing and Promotion Committee met on
January 12, 2011, to review Plaintiff’s case and voted
unanimously to dismiss Plaintiff from the medical school for
Id. ¶¶ 46-50.
Plaintiff appealed the committee’s decision on January
Id. ¶ 61.
Plaintiff’s treating psychiatrist submitted
a letter regarding Plaintiff’s depression and hypothroidism
stating that these conditions “affected his energy, motivation,
concentration and cognitive clarity.”
Id. ¶ 63.
appeal was dismissed on February 18, 2011, concluding that there
were no grounds for a formal hearing.
Id. ¶ 34.
appealed that decision to Dr. Jerris Hedges, Office of the Dean
of Medicine, asking permission to re-take the licencing exam as
an accommodation for his depression and hypothyroidism.
Plaintiff met with Dr. Hedges regarding his appeal on
April 6, 2011.
Id. ¶ 76.
Plaintiff received a letter from Dr.
Hedges on April 7, 2011, upholding the decision to dismiss
Plaintiff from the medical school.
Id. ¶ 77.
In December 2011, Plaintiff filed discrimination
complaints against Dr. Hedges and Dr. Smerz with the Office of
the Vice Chancellor for Students.
Id. ¶ 104.
report regarding Plaintiff’s complaints was submitted to the
Office of the Vice Chancellor for Students on May 21, 2012.
On June 20, 2012, Reed Dasenbrock, Vice Chancellor for
Academic Affairs, issued his decision finding no discrimination.
Id. ¶¶ 112-130.
Plaintiff appealed that decision to Vassilis
Syrmos, Associate Vice Chancellor for Research and Graduate
Education, acting as the Chancellor’s designee on July 21, 2012.
Id. ¶¶ 131, 134.
Plaintiff’s appeal was denied on September 11,
Id. ¶¶ 136-143.
Plaintiff filed this action on September 11, 2016.
ECF No. 1.
Plaintiff asserts claims under Section 504 of the
Rehabilitation Act of 1973, as amended, and under Title II of the
Americans with Disabilities Act of 1990 (“ADA”), as amended.
No. 7 ¶¶ 1, 147-154.
Under Rule 12(c), either party may move for judgment on
Fed. R. Civ. P. 12(c).
The standard for a motion
for judgment on the pleadings is essentially the same as a motion
to dismiss under Rule 12(b)(6).
Luzon v. Atlas Ins. Agency,
Inc., 284 F. Supp. 2d 1261, 1262–63 (D. Haw. 2003) (citing Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550
(9th Cir. 1989)).
The motion will be granted if, accepting as
true all material allegations contained in the nonmoving party’s
pleadings, the moving party is entitled to judgment as a matter
Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089
(9th Cir. 2002).
In the present Motion, Defendant argues that it
is entitled to judgment on the pleadings because Plaintiff’s
claims are time barred by the applicable statute of limitations.
ECF No. 24-1.
In order for the Court to determine whether Plaintiff’s
claims are time barred, the Court must first determine the
applicable statutes of limitations for Plaintiff’s Rehabilitation
Act and ADA claims.
Like many federal statutes, neither the
Rehabilitation Act nor the ADA contains an express statute of
See Ervine v. Desert View Reg'l Med. Ctr. Holdings,
LLC, 753 F.3d 862, 869 (9th Cir. 2014); Sharkey v. O’Neal, 778
F.3d 767, 770 (9th Cir. 2015).
Before 1990, federal courts
generally borrowed the statute of limitations provided by the
analogous state law.
See Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 377-78 (2004).
However, in 1990, Congress passed 28
U.S.C. § 1658, which provides a “catchall 4-year statute of
limitations for actions arising under federal statutes enacted
after December 1, 1990.”
28 U.S.C. § 1658.
Id. at 371; Sharkey, 778 F.3d at 770;
Although both the Rehabilitation Act and the
ADA were enacted before this date, the Supreme Court has held
that Section 1658’s statute of limitations also applies to claims
brought under amendments to existing statutes if “the plaintiff’s
claim against the defendant was made possible by a post–1990
Id. at 382; Sharkey, 778 F.3d at 770.
The ADA and
the Rehabilitation Act were amended by the ADA Amendments Act of
2008 (“ADAAA”), which became effective on January 1, 2009.
Accordingly, to determine the appropriate statute of limitations
period, the Court must consider whether Plaintiff’s claims were
“made possible” by the ADAAA.
See Jones, 541 U.S. at 382.
other words, the Court must decide whether Plaintiff has alleged
claims under the ADA and Rehabilitation Act as originally enacted
or whether Plaintiff’s claims “necessarily depend” on the
amendments enacted by the ADAAA.
See id. at 384.
Defendant asserts that Plaintiff’s claims could have
been brought under the original Rehabilitation Act and ADA and
therefore, the applicable statute of limitations is the two-year
statute of limitations in Hawaii Revised Statutes Section 657-7,
which bars all of Plaintiff’s claims because they occurred before
ECF Nos. 24, 33.
Plaintiff asserts that his claims were
made possible by the ADAAA, and therefore Section 1658’s fouryear statute of limitations applies and this action is not time
barred because it was filed on September 11, 2016, exactly four
years after the last decision upholding his dismissal from
ECF No. 32.
Plaintiff’s Claims Could Have Been Brought Under
the ADA and the Rehabilitation Act and Were Not “Made Possible”
by the ADAAA.
In order to establish a violation of Title II of the
ADA, a plaintiff must show that: “(1) he is an individual with a
disability; (2) he is otherwise qualified to participate in or
receive the benefit of some public entity’s services, programs,
or activities; (3) he was either excluded from participation in
or denied the benefits of the public entity’s services, programs,
or activities, or was otherwise discriminated against by the
public entity; and (4) such exclusion, denial of benefits, or
discrimination was by reason of his disability.”
Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)).
To establish a claim under Section 504 of the Rehabilitation Act,
a plaintiff must establish the same elements as above and must
also show that “the program receives federal financial
Id. (quoting Duvall v. County of Kitsap, 260 F.3d
1124, 1135 (9th Cir. 2001)).
The element at issue is whether Plaintiff qualifies as
an individual with a disability.
Under the ADA, a disability was
defined as “a physical or mental impairment that substantially
limits one or more of the major life activities of such
ADA § 3(2)(A).
The ADA did not define “physical or
mental impairment,” “substantially limits,” or “major life
In two key cases, the Supreme Court
provided guidance regarding how to interpret these terms.
Sutton v. United Air Lines, Inc., the Supreme Court held that “a
person whose physical or mental impairment is corrected by
mitigating measures still has an impairment, but if the
impairment is corrected it does not ‘substantially limit’ a major
527 U.S. 471, 483 (1999).
In Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court held
that “an individual must have an impairment that prevents or
severely restricts the individual from doing activities that are
of central importance to most people’s daily lives.
impairment’s impact must also be permanent or long term.”
U.S. 184, 198 (2002).
Congress expressly rejected these two cases in passing
the ADAAA and revised the definition of “disability” for both the
ADA and the Rehabilitation Act.
42 U.S.C. § 12102(4).
See 42 U.S.C. § 12101(a)(4)-(7);
Specifically, the ADAAA provides that
“[a]n impairment that is episodic . . . is a disability if it
would substantially limit a major life activity when active,” and
“[t]he determination of whether an impairment substantially
limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures.”
§ 12102(4)(D), (E)(i)(I).
Here, Plaintiff argues that his claims were only made
possible by the ADAAA.
See ECF No. 32 at 14-15.
Plaintiff contends that the “episodic nature of [Plaintiff’s]
depression, his contextual depression, and his depression’s
response to treatment all would have barred him from making a
claim under the original ADA.”
Id. at 6, 14-15.
Accepting the allegations of the Complaint as true,
the Court finds that Plaintiff’s claims were not “made possible”
by the ADAAA.
First, Plaintiff contends that the “episodic” and
“contextual” nature of his depression would have barred him from
making a claim under the ADA.
ECF No. 32 at 15-19.
above, under the Supreme Court’s decision in Toyota, courts were
to consider whether the impairment was “long term” in determining
whether it was a disability under the ADA.
534 U.S. at 198.
Court rejects Plaintiff’s argument because there are no
allegations that his depression was episodic or contextual in
nature in his First Amended Complaint.
In his Opposition,
Plaintiff states that he “experienced episodic depression.”
No. 32 at 14-15.
However, the First Amended Complaint, upon
which the Court must rely in deciding the present Motion, does
not contain any allegations that Plaintiff’s depression was
According to the First Amended Complaint, Plaintiff
began experiencing anxiety, depression, and inabilities to sleep
or focus in 2005, sought medical treatment for these conditions
in 2007, and was under continued psychiatric care since 2007.
ECF No. 7 ¶¶ 10, 11, 12.
Plaintiff alleges that he was
clinically diagnosed in December 2009 with major depression and
was treated for major depression and hypothyroidism throughout
Id. ¶¶ 16, 63.
When Plaintiff requested accommodations
from the medical school in January 2011, he had been experiencing
symptoms for nearly six years and had been under the care of a
psychiatrist for at least four years.
Based on the
allegations in the First Amended Complaint, Plaintiff’s
impairments were long term and were not episodic or conditional.
The Court recognizes that the Ninth Circuit has held
that psychological impairments that lasted for only a short time
were not of sufficient duration to qualify as a disability under
See Sanders v. Arneson Prods., Inc., 91 F.3d 1351 (9th
Cir. 1996) (holding that a psychological condition that lasted
for “less than four months” did not qualify as a disability under
However, as detailed above, Plaintiff’s conditions
continued for years and were not episodic.
The cases cited by
Plaintiff in his Opposition are unpersuasive because, in those
cases, the plaintiffs had alleged that the impairments at issue
See ECF No. 32 at 18-19.
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