Cobble v. Spalding University
Filing
11
MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 1/26/2017, re Defendant's 5 MOTION TO DISMISS. cc: Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DAMON COBBLE
PLAINTIFF
CIVIL ACTION NO. 3:16-CV-00525-CRS
v.
SPALDING UNIVERSITY
DEFENDANT
Memorandum Opinion
I.
Introduction
This matter is before the Court on the motion of Defendant Spalding University to
dismiss the claims under Federal Rule of Civil Procedure 12(b)(6), ECF No. 5. Plaintiff Damon
Cobble responded, ECF No. 8. Spalding University replied, ECF No. 9. For the reasons stated
below, the Court will grant Spalding University’s motion to dismiss the claims.
II.
Allegations in the Complaint
Cobble alleges that he was diagnosed with a learning disability, depression, and attention
deficit hyperactivity disorder in 2011. Compl. ¶ 12, ECF No. 1. In 2013, he enrolled in Spalding
University’s Ed.D Leadership program. Id. ¶ 13. He apparently told his professors about his
disabilities and requested reasonable accommodations for his classes. Id. ¶ 14. Cobble says that
he maintained a good GPA and was in good standing while he was enrolled in the program. Id. ¶
15.
In October 2014, Cobble advised one of his professors, Dr. Beverly Keepers, that his
disabilities prevented him from attending her class for the remainder of the semester. Id. ¶ 16.
Cobble asserts that he requested a contract to obtain an incomplete, rather than a failing, grade in
her class. Id. Despite his request, the contract to obtain an incomplete grade was never finalized.
Id.
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Because he did not obtain a contract that would allow him to receive an incomplete
grade, Cobble was required to attempt to timely finish the coursework for Dr. Keepers’ class. Id.
¶ 17. In November 2014, Cobble asked Dr. Keepers for an extension so that he could complete
the assignments in her course, which she granted. Id. He also asked Dr. Mary Stoddard, another
professor of his, for an extension so that he could complete the assignments in her course, which
she granted. Id. Notwithstanding the extensions, Cobble was unable to timely finish his
assignments. Id.
In January 2015, Cobble failed Dr. Keepers and Dr. Stoddard’s classes. Id. ¶ 18. Because
he had received two failing grades, he was dismissed from the Ed.D Leadership program. Id. He
asserts that he was advised that he could reapply to the program in one year. Id. Ten months after
his dismissal from the program, in October 2015, Cobble appealed his failing grades via an
internal appeals process. Id. ¶ 19. He cited his professors’ failure to adequately accommodate his
disabilities in support for his appeal. Id. Spalding University investigated the situation but
determined that Cobble had not been discriminated against because of his disabilities and
affirmed his termination from the Ed.D Leadership program. Id.
Cobble then apparently reapplied to the Ed.D Leadership program. Id. ¶ 20. His
application to be readmitted was denied in June 2016. Id. ¶ 20. Cobble says that Spalding
University readmitted other students to the program after they had committed more serious
infractions, such as cheating on exams. Id. ¶ 21.
Cobble filed suit against Spalding University two months after his application to be
readmitted to the Ed.D Leadership program was denied, in August 2016. He asserts three claims
against the school based upon Spalding University’s alleged failure to provide adequate
accommodations for his disabilities in the fall of 2014, which led to his dismissal from the Ed.D
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Leadership program in January 2015, and refusal to readmit him into the program in June 2016.
First, Cobble claims that Spalding University violated Title VII of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12182, et seq. (Count I). Id. ¶¶ 22–26. Second, he contends
that Spalding University violated 34 C.F.R. § 104.43, a regulation designed to implement the
Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. § 701, et. seq. (Count II). Id. ¶¶
27–31. Third, Cobble maintains that Spalding University violated the Rehabilitation Act (Count
III). Id. ¶¶ 32–35. He seeks to be readmitted into Spalding University’s Ed.D Leadership
program as well as compensatory, consequential, and emotional distress damages. Id. at 5.
III.
Discussion
Spalding University has now moved to dismiss Cobble’s ADA and Rehabilitation Act
claims under Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) permits a party to move to
dismiss a cause of action for “failure to state a claim upon which relief can be granted.” To
survive a motion to dismiss, a complaint must contain sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 55 U.S. 544, 570 (2007). A complaint states a
plausible claim for relief when the court may “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court is not
required to accept legal conclusions or “threadbare recitals of the elements of a cause of action.”
Id. When resolving a motion to dismiss, the court must “construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015) (quoting Directv,
Inc. v. Treesch, 487 F.3d 471, 476 (6th Cir. 2007)).
Spalding University asserts two arguments in support of its motion to dismiss Cobble’s
claims under Rule 12(b)(6). First, Spalding University contends that Cobble’s claims stemming
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from its alleged failure to adequately accommodate his disabilities and from his subsequent
dismissal from the Ed.D Leadership program are time-barred and thus should be dismissed.
Mem. Supp. Mot. Dismiss 4, ECF No. 5-1. Second, Spalding University argues that Cobble’s
claims that rest upon on the denial of his readmission to the Ed.D Leadership program in June
2016 should be dismissed because Cobble was not otherwise qualified when he reapplied to the
program, and thus he cannot establish discrimination under the ADA or Rehabilitation Act as a
matter of law. Id. at 6–7.
A.
Whether Cobble’s Claims Resting on Spalding University’s Alleged Failure to
Provide Adequate Accommodations and on His Dismissal from the Ed.D Program
Are Time-Barred
Spalding University contends that Cobble’s claims that rest upon its alleged failure to
adequately accommodate his disabilities and upon his subsequent dismissal from the Ed.D
Leadership program are time-barred and thus should be dismissed. Id. at 4. The school explains
that causes of action asserted under the ADA and the Rehabilitation Act in Kentucky have a oneyear statute of limitations. Id. Spalding University allegedly violated these statutes by failing to
accommodate his disabilities in the fall of 2014 and by dismissing him from the program in
January 2015. Id. at 4–5. Cobble filed suit in August 2016, more than a year after these
violations had occurred. Id. at 5.
Cobble acknowledges that claims brought under the ADA and the Rehabilitation Act in
Kentucky have a one-year statute of limitations. Resp. Mot. Dismiss 4, ECF No. 8. But he argues
that his claims are not time barred and thus should not be dismissed because (1) the statute of
limitations began running in June 2016 under Kentucky’s discovery rule, (2) Spalding University
engaged in a continuing violation that equitably tolled the statute of limitations under federal
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law, and (3) Kentucky’s equitable estoppel doctrine prevents the statute of limitations from
running. Id.
Turning to the first of these arguments, Kentucky’s discovery rule to which Cobble refers
tolls the statute of limitations “until the plaintiff discovers or in the exercise of reasonable
diligence should have discovered not only that he has been injured but also that his injury may
have been caused by the defendant's conduct.” Louisville Tr. Co. v. Johns-Manville Prods.
Corp., 580 S.W.2d 497, 501 (Ky. 1979) (citing Raymond v. Eli Lilly & Co., 371 A.2d 170, 171
(N.H. 1977)). Kentucky’s discovery rule, however, does not apply in this case. Cobble’s claims
are brought under the ADA and the Rehabilitation Act, which are federal laws. See Compl. ¶¶
22–35, ECF No. 1. When claims are made under federal law, federal law governs when the
statute of limitations begins to run, even when the statute of limitations is borrowed from state
law. See Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 183 (6th Cir. 1990).
Under federal law, “[t]he statute of limitations commences to run when the plaintiff
knows or has reason to know of the injury which is the basis of his action.” Sevier v. Turner, 742
F.2d 262, 273 (6th Cir. 1984); see also Rotella v. Wood, 528 U.S. 549, 555 (2000) (“But in
applying a discovery accrual rule, we have been at pains to explain that discovery of the injury,
not discovery of the other elements of a claim, is what starts the clock.”). The plaintiff has reason
to know of his injury “when he should have discovered it through the exercise of reasonable
diligence.” Sevier, 742 F.2d at 273.
Taking all reasonable inferences in favor of Cobble, he had reason to know of his
injuries—that Spalding University failed to accommodate his disabilities and that he was
consequently dismissed from the Ed.D Leadership—by January 2015. As described in the
complaint, he was denied accommodations for his two courses in the fall of 2014, and he was
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dismissed from the program in January 2015. Compl. ¶¶ 17–18, ECF No. 1. Therefore, the oneyear statute of limitations for his claims based on these two events began to run in January 2015
and expired in January 2016, several months before Cobble filed suit against Spalding
University.
With regards to Cobble’s second argument why his claims based on Spalding
University’s failure to adequately accommodate and his dismissal from the Ed.D Leadership
program are not time-barred—that Spalding University engaged in a continuing violation that
equitably tolled the statute of limitations—courts in the Sixth Circuit will equitably toll the
statute of limitations for civil rights statutes based upon the following five-factor test:
(1) lack of actual notice of [the] filing requirement; (2) lack of constructive notice
of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of
prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining
ignorant of the notice requirement.
Simmons v. Middle Tenn. State Univ., No. 95-6111, 1997 U.S. App. LEXIS 17751, at *8 (6th
Cir. July 11, 1997) (citing Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)).
The continuing violations doctrine is recognized in two types of discrimination cases.
EEOC v. Penton Indus. Publ’g, 851 F.2d 835, 838 (6th Cir. 1988). The first type of case involves
“some evidence of present discriminatory activity giving rise to a claim of a continuing
violation.” Id. One example of this first type of continuing violation, in the context of a claim
brought under Title VII of the Civil Rights Act of 1964, is when an employer continues different
pay rates between similarly situated groups of employees. Id. The second involves a “longstanding and demonstrable policy of discrimination.” Id. An example of this second type of
continuing violation, also within the context of Title VII, is when an employer repeatedly pays
its male employees more than its female employees. Id. Regardless of the type of case giving rise
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to a continuing violation that would toll the statute of limitations, “[m]ere continuity” of injury is
not sufficient to invoke the continuing violations doctrine. Id.
Here, Cobble does not allege facts that plausibly would show that Spalding University
engaged in a continuing violation or that would meet the requirements for tolling the one-year
statute of limitations in the Sixth Circuit. Regarding the continuing violation doctrine, Cobble
does not provide facts that would show that Spalding University is involved in a present
discriminatory activity. Nor does he provide facts that would show that Spalding University has
a longstanding and demonstrable policy of discrimination.
Concerning the doctrine of equitable tolling, Cobble asserts in the complaint that he told
his professors about his disabilities and requested reasonable accommodations for his classes
when he began the program. Compl. ¶ 14, ECF No. 1. He also claims that he appealed his failing
grades and cited his professors’ failure to adequately accommodate his disabilities in support. Id.
¶ 19. These facts reasonably suggest that Cobble had actual or constructive notice of filing
requirements for the ADA and/or the Rehabilitation Act.
Cobble also does not show that he was diligent in pursuing his rights under the ADA or
the Rehabilitation Act. Although he provides facts alleging that he appealed his failing grades
using Spalding University’s internal grievance procedure, id., the Supreme Court has noted 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.” Del. State Coll. v. Ricks, 449 U.S.
250, 261 (1980). Finally, Cobble does not assert facts that would demonstrate that tolling the
statute of limitations would not prejudice Spalding University. Under these circumstances, he
cannot meet the requirements for tolling the statute of limitations in the Sixth Circuit.
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Turning to Cobble’s final argument for why his claims based on Spalding University’s
failure to reasonably accommodate his disabilities and his dismissal from the Ed.D Leadership
program are not subject to the one-year statute of limitations—that his claims are subject to
Kentucky’s equitable estoppel doctrine—, equitable estoppel in Kentucky requires a “material
misrepresentation by one party and reliance by the other party.” Fluke Corp. v. Lemaster, 306
S.W.3d 55, 62 (Ky. 2010). The Kentucky equitable estoppel doctrine is not applicable to this
case because, as previously noted, the claims that Cobble alleges are brought under federal law,
and federal law governs when the statute of limitations begins to run. See Collard, 896 F.2d at
183. Therefore, Kentucky’s equitable estoppel doctrine cannot prevent Cobble’s claims from
being time-barred.
Because Cobble is unable to show why the one-year statute of limitations is inapplicable
to his claims brought under the ADA and the Rehabilitation Act based upon Spalding
University’s failure to reasonably accommodate his disabilities and his subsequent dismissal
from the Ed.D Leadership programs, the claims will be dismissed.
B.
Whether Cobble Was Otherwise Qualified for Acceptance into the Ed.D. Program
When He Reapplied
Spalding University also argues that Cobble’s claims resting on the denial of his
readmission to the Ed.D Leadership program in June 2016 should be dismissed because Cobble,
having failed two classes, was not otherwise qualified when he reapplied to the Ed.D Leadership
program and thus cannot establish discrimination under the ADA or Rehabilitation Act as a
matter of law. Mem. Supp. Mot. Dismiss 6–7, ECF No. 5-1. Cobble maintains in opposition that
he has sufficiently plead his claims under the ADA and Rehabilitation Act, including that he was
otherwise qualified for admission into the Ed.D Leadership program. Resp. Mot. Dismiss 4, ECF
No. 8.
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The analysis of a claim under the ADA “roughly parallels” the analysis of claims brought
under the Rehabilitation Act. Pangburn v. N. Ky. Univ., No. 99-5474, 2000 U.S. App. LEXIS
6413, at *4 (6th Cir. Mar. 23, 2000). To bring a claim for disability discrimination under these
statutes, the plaintiff must prove that he is “(1) disabled as defined by each statute, (2) ‘otherwise
qualified’ for participation in the program, and (3) being denied the benefits of or being
dismissed from the program based on h[is] disability.” Id. (citing Kaltenberger v. Ohio Coll. of
Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998)). A person is “otherwise qualified” if he or
she can meet the program’s necessary requirements with reasonable accommodation. Id. Courts
generally defer to the judgment of a school when considering students’ qualifications. See
Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012) (compiling list of
cases).
In this case, Spalding University had determined that a student who received two failing
grades was not otherwise qualified for admittance into its Ed.D Leadership program. See Compl.
¶ 18, ECF No. 1. Because he received two failing grades, id., Cobble cannot show he was
otherwise qualified when he reapplied to the program. Therefore, Cobble’s claims based upon
the denial of his readmission to Spalding University’s Ed.D Leadership program will be
dismissed.
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IV.
Conclusion
The Court will grant Spalding University’s motion to dismiss the claims alleged against it
under Rule 12(b)(6). The Court will dismiss Cobble’s claims with prejudice. An order will be
entered in accordance with this memorandum opinion.
January 26, 2017
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