Cordova v. Notre Dame Du Lac University of

Filing 13

OPINION AND ORDER DISMISSING CASE, granting 6 MOTION to Dismiss Plaintiff's Complaint filed by Notre Dame Du Lac University of. Plaintiff's claims are dismissed with prejudice. Signed by Judge Rudy Lozano on 3/29/13. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

AMBER MARIE LETTS CORDOVA,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSITY OF NOTRE DAME
DU LAC,
Defendant.

3:12-CV-153

OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion
to Dismiss Plaintiff’s Complaint, filed by Defendant, University
of Notre Dame Du Lac, on June 1, 2012.

(DE #6.)

reasons set forth below, the motion is GRANTED.

For the

The plaintiff’s

claims are DISMISSED with prejudice, and the clerk is ORDERED to
close this case.

BACKGROUND
Plaintiff,

Amber

Marie

Letts

Cordova

(“Cordova”),

originally filed a complaint on July 13, 2011, in the United
States

District

Court

for

the

Northern

District

of

Indiana,

cause number 3:11-CV-210, against Defendant, the University of
1

Notre Dame Du Lac (“Notre Dame”).

On December 13, 2011, the

Honorable Robert L. Miller, issued an opinion and order for that
case which, as related to Notre Dame, provided that several of
Cordova’s claims were dismissed with prejudice and several were
dismissed without prejudice.

Cordova filed a new complaint with

this Court for those claims dismissed without prejudice against
Notre Dame on March 30, 2012.
In this most recent complaint, Cordova states that she has
a

cognitive

learning

disability

which

“alters

the

manner

in

which she processes written materials and her ability to write”
and

a

mental

or

psychological

disability

“periods of severe depression and anxiety.”
She

further

states

that

these

disabilities

which

results

in

(DE #1, p. 1, 3.)
cause

her

to

be

“substantially limited in the major life activities of learning,
thinking,

concentrating,

reading,

“reasonable

accommodations

educational

materials

and

in

and

order

content.”

sleeping”

and

require
access

for

to

[sic]

(Id.

at

3.)

Cordova

alleges that Notre Dame:
violated Title III of the Americans with Disabilities
Act (“ADA”), as amended 42 U.S.C. §§ 12181-12189 and
Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794, by failing to provide [her]
with appropriate accommodations in order to fully
participate as a master-level student in Defendant’s
Masters Degree in Fine Arts program (“Program”);
expelling her from the Program, and retaliating
against her for complaining about the lack of
appropriate accommodations.

2

(Id.

at

1-2.)

She

also

alleges

that

she

suffered

“severe

emotional distress” as a result of Notre Dame’s conduct.
at 17.)

(Id.

In her complaint, Cordova describes numerous occasions

on which she allegedly requested but was denied accommodations
by Notre Dame faculty members, and she sets out the steps she
took to file related grievances and appeals.
Cordova

states

that

she

was

“effectively

(Id. at 4-11.)

expelled

from

the

Program” on August 10, 2009, but that she was “not aware of this
fact at this time.”

(Id. at 11.)

Several days later she

registered for courses, began her course work, and resubmitted
her

appeal;

however,

Graduate

School

Associate

Dean

Turpin

“instructed the registrar to remove Cordova from all registered
fall semester courses and discontinued her student status” on
August 25, 2000.

(Id.)

That same day, she was informed via an

email from Student Housing that she had twenty-four hours to
vacate

her

residence,

and

Cordova

states

that

this

was

the

communication to inform her that she was “no longer a student.”
(Id.)

Cordova

subsequently

hearing,

and

September

(Id.)

on

testified

24,

2009,

at

her

an

appeal

appeal

was

board
denied.

She “appealed this decision to the Provost,” but her

complaint was “summarily denied” on April 1, 2010.

(Id. at 11-

12.)
Notre Dame filed the instant motion in lieu of an answer.
Cordova filed her response on June 25, 2012, to which Notre Dame

3

filed

a

reply

on

July

3,

2012.

The

motion

is

ripe

for

adjudication.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint
to be dismissed if it fails to “state a claim upon which relief
can be granted.”

Allegations other than fraud and mistake are

governed by the pleading standard outlined in Federal Rule of
Civil

Procedure

8(a),

which

requires

a

“short

and

plain

statement” showing that the pleader is entitled to relief.

In

order to survive a Rule 12(b)(6) motion, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).

All well-pleaded facts

must be accepted as true, and all reasonable inferences from
those facts must be resolved in the plaintiff’s favor.
Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008).
plaintiff

may

plead

himself

out

of

court

if

the

Pugh v.

However, a
complaint

includes allegations that show he cannot possibly be entitled to
the relief sought.

McCready v. eBay, Inc., 453 F.3d 882, 888

(7th Cir. 2006).
The

Seventh

Circuit

has

cautioned

against

granting

Rule

12(b)(6) motions based on affirmative defenses because “[t]he

4

mere presence of a potential affirmative defense does not render
the claim for relief invalid.”

Brownmark Films, LLC v. Comedy

Partners, 682 F.3d 687, 690 (7th Cir. 2012).

However, while

affirmative defenses “typically turn on facts not before the
court at that stage in the proceedings,” cases may be properly
dismissed

prior

to

discovery

presented.”

Id.

Cir.

(statute

2009)

“when

all

relevant

facts

are

See Brooks v. Ross, 578 F.3d 574, 579 (7th
of

limitations

argument

was

properly

addressed at the motion to dismiss stage “because the relevant
dates [were] set forth unambiguously in the complaint.”)1
In

its

motion

to

dismiss,

Notre

Dame

argues

that

the

complaint affirmatively shows all of Cordova’s claims are timebarred.

Cordova disagrees.

Cordova’s Claims Under Title III of the ADA
Cordova brings several claims pursuant to Title III of the
ADA, as amended, 42 U.S.C. §§ 12181-12189, which provides that
“[n]o individual shall be discriminated against on the basis of
disability

in

the

full

and

equal

enjoyment

of

the

goods,

services, facilities, privileges, advantages, or accommodations
of any place of public accommodation . . . .”
12182.

The

ADA

is

a

“broad

1

mandate”

of

42 U.S.C. §
“comprehensive

In such a case, the practical effect of a Rule 12(b)(6) motion is the same
as a motion for judgment on the pleadings under Rule 12(c). Brooks, 578 F.3d
at 579.

5

character”

and

“sweeping

purpose”

intended

“to

eliminate

discrimination against disabled individuals, and to integrate
them into the economic and social mainstream of American life.”
PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (citation and
quotation marks omitted); see also 42 U.S.C. § 12101(b)(1), (2)
(providing that the ADA is intended “to provide a clear and
comprehensive

national

discrimination
enforceable

as

mandate”

well

standards”

eliminating

disability

“clear,

as

for

strong,

consistent,

addressing

such

discrimination).

In

terms of the ADA, “disability” with respect to an individual is
defined

as

(A)

“a

physical

or

mental

impairment

that

substantially limits one or more major life activities of such
individual”; (B) “a record of such an impairment”; or (C) “being
regarded as having such an impairment.”

42 U.S.C. § 12102(1).

Because the ADA does not contain its own limitation period,
courts have been directed to apply the statute of limitations of
the state cause of action “most analogous” to the plaintiff’s
claims.

See Wilson v. Garcia, 471 U.S. 261, 266 (1985); Scherr

v. Marriott Intern., Inc., 703 F.3d 1069, 1075 (7th Cir. 2013).
ADA claims brought in a federal court sitting in Indiana are
generally governed by Indiana’s two year statute of limitations
for personal injury claims.

Ind. Code § 34-11-2-4; Soignier v.

Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 n. 3 (7th Cir.
1996).

6

However,

in

2004

the

Supreme

Court

held

that

if

a

plaintiff’s claim is “made possible by a post-1990 enactment,”
the action is governed by the four year statute of limitations
period set forth in 28 U.S.C. section 1658.

Jones v. R.R.

Donnelley & Sons Co., 541 U.S. 369, 380 (2004).

The Court noted

that section 1658 also applies to those claims that are created
by

amending

definitions,

existing
or

adding

statutes,
new

and

“[a]ltering

definitions

of

terms

previously

undefined, is a common way of amending statutes.”
(quoting

statutory

Id. at 381

Rivers v. Roadway Express, Inc., 511 U.S. 298, 308

(1994)); see also Middleton v. City of Chicago, 578 F.3d 655,
659

(7th

Cir.

2009).

The

Jones

Court

stated

that

“[w]hat

matters is the substantive effect of an enactment--the creation
of new rights of action and corresponding liabilities--not the
format in which it appears in the Code.”
381.

In

a

footnote,

the

Court

Jones, 541 U.S. at

acknowledged

the

potential

difficulty in determining the viability of certain actions when
authority is split regarding the scope of the original statute
but

noted

amendment

that

courts

clarified

liabilities.”

“will

existing

have
law

to
or

determine
created

new

whether

the

rights

and

Id. at 385, n. 18.

Effective January 1, 2009, the ADA was amended to “carry
out

the

ADA’s

protection.”

objectives”

by

“reinstating

a

broad

scope

of

See ADA Amendments Act of 2008 (“ADAAA”), Pub. L.

7

No.

110–325,

122

Stat.

3553

(2008).

The

ADAAA

itself

is

described as “[a]n Act to restore the intent and protections of
the

Americans

with

Disabilities

Act

of

1990,”

and

in

its

findings Congress specifically noted that the original intent of
the

ADA

was

to

provide

“broad

coverage”

comprehensive

national

mandate

discrimination

against

individuals

(emphasis added).
States

Supreme

for

and

with

“clear

and

elimination

the

a

of

disabilities.”

Id.

Specifically, Congress found that the United

Court

had

improperly

narrowed

the

protection

intended to be afforded under the ADA, and the ADAAA rejected
the holdings of Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184

(2002).

Importantly,

the

ADAAA

left

the

ADA's

three-

category definition of “disability” intact2 but clarified how the
categories are to be interpreted.
For example, the ADAAA now provides a specific definition
for

the

term

“Major

Life

Activities”

3

whereas

prior

to

the

2

As stated above, “disability” with respect to an individual is defined as
(A) “a physical or mental impairment that substantially limits one or more
major life activities of such individual”; (B) “a record of such an
impairment”; or (C) “being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1).

3

The definition provides: “major life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working” and
also include “the operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell growth, digestive,
bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.” 42 U.S.C. § 12102(2)(A), (B).

8

amendments,

courts

interpreting

the

frequently

Rehabilitation

regulations for guidance.
Rehabilitation
Health,

looked

Act

of

the

1973

regulations

and

the

EEOC

See Toyota, 534 at 193-94 (relying on

regulations

Education,

Act

to

and

issued

Welfare

by

the

(“HEW”)

Department
(45

CFR

of
§

84.3(j)(2)(ii)); Duda v. Bd. of Educ. of Franklin Park Pub. Sch.
Dist. No. 84, 133 F.3d 1054, 1058, n. 6 (7th Cir. 1998) (relying
on EEOC regulations (29 C.F.R. § 1630.2(i)).

Congress also

added specific “[r]ules of construction regarding the definition
of disability” which provide:
(A) The definition of disability in this chapter shall
be construed in favor of broad coverage of individuals
under this chapter, to the maximum extent permitted by
the terms of this chapter.
(B)
The
term
“substantially
limits”
shall
be
interpreted
consistently
with
the
findings
and
purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major
life activity need not limit other major life
activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is
a disability if it would substantially limit a major
life activity when active.
(E)(i) The determination of whether an impairment
substantially limits a major life activity shall be
made without regard to the ameliorative effects of
mitigating measures . . . .
42 U.S.C. § 12102(4).

In essence, the ADAAA reestablished the

original intent and expansive scope of the ADA.
Cordova,

however,

argues

that

several

of

these

changes

“directly impact” her claims, which would, in turn, trigger the
applicability of section 1658’s four year limitations period.

9

She states that the ADAAA “altered the definition of major life
activity” and revised how courts need to measure whether an
impairment

“substantially

limits”

those

activities,

and

she

points out that Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184 (2002) has been overturned.

While it is true that

Toyota is no longer good law, Cordova does not explain why it is
the enactment of the ADAAA that made her claims possible.
Toyota involved an individual claiming to be disabled due
to her carpal tunnel syndrome and other related impairments.
Toyota, 534 at 187.

The individual based her claim on the fact

that she was substantially limited in performing manual tasks,
doing housework, gardening, playing with her children, lifting,
and working.

Id. at 190.

The Court held that “[m]erely having

an impairment does not make one disabled for purposes of the
ADA.
limits

Claimants also need to demonstrate that the impairment
a

major

“substantial.”

life
Id.

activity”
at

195.

and
In

that

focusing

the
on

limitation
the

is

claimant’s

argument that her disabilities affected her ability to perform
manual tasks,4 the Court concluded that “[t]he word ‘substantial’
. . . clearly precludes impairments that interfere in only a
minor way with the performance of manual tasks from qualifying
disabilities”

and

that

major

life

4

activities

refer

only

to

The Court specifically noted that it “express[ed] no opinion on the
working, lifting, or other arguments for disability status.” Toyota, 534 at
193.

10

“those activities that are of central importance to daily life.”
Id. at 197.

However, in enacting the ADAAA, Congress pointed

out that the

Toyota

broad

of

scope

Court had improperly narrowed the ADA’s

protection

by

“interpret[ing]

the

term

‘substantially limits’ to require a greater degree of limitation
than was intended by Congress.”

See ADAAA, Pub. L. No. 110–325,

122 Stat. 3553 (2008).
Here,
disability

Cordova
that

alleges

“alters

she

the

has

manner

a
in

cognitive
which

she

learning
processes

written materials and her ability to write” and a psychological
disability that results in “periods of severe depression and
anxiety.”

Because of these disabilities, Cordova states that

she is “substantially limited in the major life activities of
learning, thinking, concentrating, reading, and sleeping” and
that

Notre

Dame

disabilities.

discriminated

against

her

because

of

these

Taking these facts as true, which the Court must

do at this stage, Cordova has alleged a violation of the ADA as
originally

enacted

amended ADAAA.

as

well

as

a

violation

of

the

recently

Nothing in the now obsolete Toyota framework

changes this analysis.
A learning disability that substantially limits a person’s
ability to learn, think, and concentrate (activities of central
importance to daily life) is precisely the type of disability
the ADA has always sought to protect.

11

See e.g. DePaoli v.

Abbott Lab., 140 F.3d 668, 671 (7th Cir. 1998) (citing to EEOC
regulations at 29 C.F.R. § 1630.2 to define mental impairment as
one which includes “specific learning disabilities” and major
life

activities

“learning”);

as

Duda,

those
133

which

F.3d

at

include
1058-59

functions
(citing

to

such
the

as
same

regulations and finding that plaintiff had sufficiently alleged
mental disability); see also 45 CFR § 84.3 (HEW regulations
defining

mental

disorder,

such

impairment
as

.

.

as

.

“any

emotional

specific learning disabilities”).
disability

that

substantially

mental
or

or

mental

psychological
illness,

and

Similarly, a psychological
limits

learning,

thinking,

concentrating, reading, and sleeping is also a disability that
has been deserving of protection under both the ADA and the
ADAAA.
Seventh

Cordova argues that prior to the passage of the ADAAA,
Circuit

depression

did

case
not

law

held

constitute

that

“isolated

disabilities.

See

bouts”

of

Brunker

v.

Schwan's Home Serv., Inc., 583 F.3d 1004, 1008 (7th Cir. 2009);
Kinney v. Century Services Corp. II, 2011 WL 3476569, *10 (S.D.
Ind. Aug. 9, 2011).

While technically accurate, the Seventh

Circuit has also held that “[m]ajor depression can constitute a
disability under the ADA.”

Ogborn v. United Food and Commercial

Workers Union, Local No. 881, 305 F.3d 763, 767 (7th Cir. 2002)
(collecting

cases).

Here,

Cordova

alleges

a

psychological

disability that results in “periods of severe depression and

12

anxiety” and substantially limits her various life activities.
She

does

not

allege

that

“isolated” or in remission.

her

psychological

disability

was

Taking her at her word and relying

on the facts as stated in the complaint, 5 Cordova has alleged
disability-based

discrimination

claims

that

would

have

been

actionable under the original terms and provisions of the ADA;
her

claims

were

not

created

by

the

recent

amendments

which

simply clarified the existing statute by restoring its original
intent and broad scope.

Thus, Cordova’s claims are subject to

Indiana’s two-year statute of limitations period for personal
injury actions.
To pinpoint the date a statute of limitations expires, a
court must look to when that particular claim accrued.

“Accrual

is the date on which the statue of limitations begins to run.”
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.
1990).

In

general,

question

cases

making

a

“discovery
it

the

date

rule”
“on

applies
which

discovers he has been injured” that matters.

Id.

in

the

federalplaintiff

In Del. State

Coll. v. Ricks, 449 U.S. 250, 259 (1980), the Supreme Court

5

It is true that the existence of a disability has generally been determined
on a “case by case” basis. See DePaoli, 140 F.3d at 672. However, for
purposes of this motion, the Court must take all of the allegations as stated
in the complaint as true; Cordova has alleged that she has a learning
disability and psychological disability that substantially limits her in the
major life activities of learning, thinking, concentrating, reading, and
sleeping. The Court takes these claims at face value.

13

defined

the

discovery

date

as

one

on

notified of a discriminatory decision.

which

a

plaintiff

is

As applied to the facts

in Ricks, this meant that the plaintiff’s claim accrued when the
decision was made to deny him tenure and not later when his
employment was officially terminated.

Id. at 258.

noted

upon

that

“[t]he

proper

focus

is

the

The Court

time

of

the

discriminatory acts, not upon the time at which the consequences
of the acts became most painful.”

Id. (citations omitted).

The

Court further explained that “the pendency of a grievance, or
some

other

method

of

collateral

review

of

an

employment

decision, does not toll the running of the limitations periods.”
Id. at 261.
The Seventh Circuit embraced this concept in a situation
analogous

to

the

instant

case.

In

Soignier

v.

Am.

Bd.

of

Plastic Surgery, 92 F.3d 547, 549-50 (7th Cir. 1996), a plastic
surgeon sued an examination board under the provisions of the
ADA for failing to accommodate his learning disabilities.

The

plaintiff

the

did

certification
accommodations.
“voluntary

not

pass

test
Id.

internal

the

after

oral

examination

requesting

Subsequently,
appeal”

and

the

requested

portion

but

being

plaintiff
that

he

denied

pursued
be

another oral examination with additional accommodations.
550.

of

a

given
Id. at

The board “alerted him” that his requests were unlikely to

be granted, and approximately eighteen months later, the board

14

officially denied his internal appeal.

Id.

In upholding the

district court’s decision that the plaintiff’s claims accrued
when the board administered the final oral examination without
the requested accommodations, the Seventh Circuit noted that it
is the “discovery of the original act of discrimination, not
future

confirmation

of

the

injury

or

determination

that

the

injury is unlawful” that triggers the statute of limitations.
Id.

at

551

(emphasis

in

original)

(collecting

cases).

A

“refusal to undo a discriminatory decision is not a fresh act of
discrimination.”

Id. at 552.

Here, Notre Dame argues that Cordova’s claims accrued, at
the very latest, in August of 2009 and that the statute of
limitations expired in August of 2011.

Cordova, on the other

hand, argues that her claims did not accrue until April 1, 2010,
which would have given her until April 1, 2012, to file her
lawsuit.
In

her

complaint,

Cordova

alleges

she

was

“effectively

expelled from the Program” on August 10, 2009, but that she was
“not aware of this fact at this time.”

However, she goes on to

state that, on August 25, 2009, the registrar was instructed by
Dean Turpin to remove her from all courses and “discontinue[]
her student status.”
received

an

email

On that same day, Cordova states that she
from

Student

Housing

indicating

she

had

twenty-four hours to vacate her residence and informing her that

15

“she was no longer a student.”
Cordova

discovered

Notre

Thus, by her own allegations,

Dame’s

final

discriminatory

(expelling her from the Program) on August 25, 2009.

act

It is this

date on which her claims accrued.6
Finally, while Cordova essentially argues that the statute
of limitations was tolled until April 1, 2010, when the Provost
denied

her

appeal,

this

argument

Seventh Circuit case law.
that

“internal

appeals

is

squarely

foreclosed

by

See Soignier, 92 F.3d at 553 (noting
are

not

part

of

the

ADA

statutory

procedure and do not toll the time for filing suit” and finding
that plaintiff “had to file suit within two years of the accrual
date

even

if

remedies”).

he

had

Here,

not

exhausted

Cordova

all

discovered

possible

internal

the

allegedly

discriminatory decision to expel her from the Program 7 in late
August of 2009, and she admits in her response brief that she
was

“under

no

obligation”

complaint process.

to

utilize

Notre

Dames’s

internal

The fact that she appealed the decision to

6

Cordova also alleges that she testified at an appeal hearing on September
18, 2009, and that the board denied her appeal on September 24, 2009,
suggesting that she “could have saved herself damages if she would have just
withdrawn from the Program.” Thus, even giving Cordova the benefit of the
doubt that she did not have actual knowledge of the final discriminatory act
until after the hearing, her claims accrued no later than September 24, 2009.

7

Cordova specifically states in her complaint that Notre Dame discriminated
against her by failing to accommodate her and “expelling her from the
Program” (emphasis added). Although she now attempts to assert that she is
only bringing claims against Notre Dame for terminating her ultimate
relationship with the university, this argument is without merit. This is
especially true considering the fact that Cordova admits her student status
was “discontinued” and she was notified that she was “no longer a student” in
August of 2009.

16

expel her from the Program to the Provost has no bearing on when
her claims accrued.
In sum, based on the allegations stated on the face of the
complaint, Cordova needed to file her ADA discrimination claims
by August 25, 2011, in order for these claims to be timely.

She

did not file her complaint with this Court until March 30, 2012;
thus, her claims are barred by the applicable two-year statute
of limitations.

Cordova’s Claims Under Section 504 of the Rehabilitation Act
Cordova relies on the same set of facts to bring her claims
pursuant

to

provides

that

disability

.

section
“[n]o
.

.

504

of

the

otherwise

shall,

Rehabilitation

qualified

solely

by

Act,

individual

reason

of

his

which

with
or

a
her

disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance . . . .”
U.S.C.

§

794(a).

In

the

Seventh

Circuit,

courts

use

29
the

precedent under the ADA to analyze Rehabilitation claims because
the statutes are so similar.

See Garg v. Potter, 521 F.3d 731,

736 (7th Cir. 2008); Wash. v. Ind. High Sch. Athletic Ass'n,
Inc., 181 F.3d 840, 845 (7th Cir. 1999) (“the elements of claims
under the two provisions are nearly identical, and precedent
under one statute typically applies to the other.”)

17

See also

Bragdon v. Abbott, 524 U.S. 624, 631-32, (1998) (stating that
courts are required to “construe the ADA to grant at least as
much protection as provided by the regulations implementing the
Rehabilitation Act”).
As with claims under the ADA, a claim brought in federal
court

under

this

provision

of

the

Rehabilitation

Act

is

generally governed by the statute of limitations for personal
injury

claims

sitting.
5

(7th

of

the

state

in

which

the

federal

court

is

Conley v. Vill. of Bedford Park, 215 F.3d 703, 710, n.
Cir.

2000).

Under

Indiana

law,

such

claim

must

be

commenced within two years after the cause of action accrues.
Ind.

Code

§

34-11-2-4.

However,

as

noted

above,

if

a

plaintiff’s claim is “made possible by a post-1990 enactment,”
the action is governed by the four year statute of limitations
period set forth in 28 U.S.C. section 1658.

Jones, 541 U.S. at

380.
Arguing

that

section

1658

should

apply

to

all

of

her

federal claims, Cordova states that “Congress has amended both
acts implicated by Plaintiff’s claims following the passage of
section 1658.”

However, while she specifically refers to the

ADAAA, Cordova does not cite to any particular amendment of the
Rehabilitation Act on which she bases her argument.

Instead,

she simply points out that Congress amended the ADA to ensure
that it “would be interpreted consistently with how courts had

18

applied the definition of a handicapped individual under the
Rehabilitation Act of 1973.”
Stat. 3553 (2008).

ADAAA, Pub. L. No. 110–325, 122

In fact, the Court notes that, in order to

conform with the ADAAA, the definition of “individual with a
disability” under the Rehabilitation Act was amended in several
sections to include “any person who has a disability as defined
in

section

12102

of

Title

705(9)(B), (20)(B); ADAAA,

42”

of

the

ADA.

See

29

U.S.C.

Pub. L. No. 110–325, 122 Stat. 3553

(2008).
As

such,

and

because

the

underlying

facts

alleging

disability and discriminatory conduct are the same, the Court’s
analysis of Cordova’s claims under the ADA applies equally to
her claims under the Rehabilitation Act.

Cordova’s claims are

subject to Indiana’s two-year statute of limitations period for
personal injury actions, and, as described in detail above, are
time-barred.

Cordova’s Claim of Intentional Infliction of Emotional Distress
Pursuant to State Law
Finally,

Cordova

alleges

that

Notre

Dame

acted

“intentionally or recklessly” to harass her by “ignoring her
requests for assistance, belittling her need for accommodations,
and orchestrating her expulsion from the Program.”

Notre Dame

argues that this claim is untimely under the applicable Indiana

19

statute of limitations.

Cordova has failed to respond to this

argument.
For a state law claim such as intentional infliction of
emotional distress, a federal court must apply the applicable
state law statute of limitations.

Parish v. City of Elkhart,

614 F.3d 677, 679 (7th Cir. 2010).

In Indiana, the timeliness

of a claim for intentional infliction of emotional distress is
governed

by

Indiana

Code

34-11-2-4,

which

requires

that

an

action be commenced within two years of the date on which the
action accrued.

See Hildebrand v. Hildebrand, 736 F.Supp. 1512,

1517 (S.D. Ind. 1990).

The standard discovery rule in Indiana

is that the claim “accured at the time the individual knew or
should have known of the tort.”

Parish, 614 F.3d at 683; see

also Filip v. Block, 879 N.E.2d 1076, 1082 (Ind. 2008) (statute
begins

to

run

when

“plaintiff

knew

or,

in

the

exercise

of

ordinary diligence, could have discovered that an injury had
been sustained as a result of the tortious act of another”).
Here, Cordova knew of Notre Dame’s allegedly “extreme and
outrageous”

conduct

August

2009,

25,

which
when

caused

it

expulsion from the Program.”

her

succeeded

emotional
in

distress

“orchestrating

by
her

On this date, she alleges she was

instructed to vacate her residence and was notified that she was
“no longer a student.”

Thus, her intentional infliction of

20

emotional distress claim accrued on August 25, 2009, and is
barred by the applicable two-year statute of limitations.

CONCLUSION
For the reasons set for the above, the Defendant’s Motion
to Dismiss Plaintiff’s Complaint, filed by Defendant, University
of Notre Dame Du Lac, on June 1, 2012 (DE #6), is GRANTED.

The

plaintiff’s claims are DISMISSED with prejudice, and the clerk
is ORDERED to close this case.

DATED:

March 29, 2013

/s/RUDY LOZANO, Judge
United States District Court

21