Frankola v. Board of Supervisors for Louisiana State University and Agricultural and Mechanical College et al

Filing 41

ORDER AND REASONS granting in part 29 Motion for Summary Judgment. Plaintiff's claims that arose prior to November 13, 2014 are DISMISSED WITH PREJUDICE as prescribed. Plaintiff's state law claims of negligence and intentional infliction of emotional distress are DISMISSED WITH PREJUDICE as well. Plaintiff's claim of discrimination under the ADA, Rehabilitation Act, and Title IX regarding the denial of readmission remains. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATHRYN FRANKOLA

CIVIL ACTION

VERSUS

NO: 15-5933

LOUISIANA STATE UNIVERSITY
SCHOOL OF MEDICINE

SECTION: “H”(5)

ORDER AND REASONS
Before the Court is Defendant Board of Supervisors for Louisiana State
University and Agricultural and Mechanical College’s Motion for Summary
Judgment (Doc. 29). For the following reasons, the motion is GRANTED IN
PART.
BACKGROUND
Plaintiff Kathryn Frankola alleges that she was not readmitted to the
Louisiana State University School of Medicine in New Orleans (“LSU School
of Medicine”) after she took medical leave in violation of Section 504 of the
Rehabilitation Act (“Rehabilitation Act”), Title II of the Americans with
Disabilities Act (ADA), Title IX of the Educational Amendments of 1972 (“Title
IX”), and state law.
Plaintiff began attending LSU School of Medicine in the fall of 2010. At
the outset, the administration was made aware of Plaintiff’s bipolar disorder.
Plaintiff alleges that despite her condition and a manic episode that occurred
in the fall of 2010, she was treated as a regular student and not given any
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additional accommodations. She alleges that her requests for accommodations
were denied in several separate instances from 2010 to 2014.
In the spring of 2011, Plaintiff failed her Physiology course and was
dismissed from the school. Plaintiff then retook and passed the course at the
University of Vermont and was readmitted to the LSU School of Medicine for
her second year in the fall of 2012. In her first semester back, Plaintiff failed
another course, Pathology.

She was allowed to retake Pathology in the

summer of 2013 but again failed the course. She alleges that her failure was
the result of the denial of certain test taking accommodations. In light of her
failure to complete the curriculum, however, Plaintiff was placed on academic
probation and required to repeat her entire second year. As a condition of
academic probation, Plaintiff would be dismissed if she failed another course.
In the fall of 2013, Plaintiff became pregnant. Plaintiff discussed her
options with Dean of Students Joseph Delcarpio, and it was decided that she
take a medical leave of absence in light of her pregnancy and bipolar disorder.
Plaintiff alleges that Delcarpio informed her that all that was required to
resume classes was a “Fit for Duty” letter.
In November 2014, Plaintiff submitted her “Fit for Duty” letter to return
to school. She alleges that she was required to go through the readmission
process and that readmission was denied. Plaintiff alleges that she was not
informed that there were any risks associated with taking medical leave or
that she would be required to be readmitted. Plaintiff appealed the
University’s decision, and the appeal was denied in January 2015. This suit
followed. Plaintiff alleges that she was not allowed readmission because of her
pregnancy and bipolar disorder.
Defendant Board of Supervisors for Louisiana State University and
Agricultural and Mechanical College has filed the instant Motion for Summary

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Judgment alleging that Plaintiff’s claims should be dismissed because they are
either prescribed or unsubstantiated. This Court will consider each argument
in turn.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the non-

Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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movant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8
LAW AND ANALYSIS
A. Prescription
Defendant first alleges that many of Plaintiff’s claims are prescribed.
Defendant points out that the prescriptive period for all of Plaintiff’s claims is
one year. 9 Therefore, claims relating to any incident that occurred outside of
one year of suit are prescribed.

Plaintiff makes several claims regarding

Defendant’s failure to provide accommodations for her disability, which
occurred outside of the prescriptive period. Plaintiff argues that prescription
does not apply to eliminate these claims, however, because her claims did not
accrue until she had exhausted the appeals process. She alleges that the denial
of all of her prior requests for accommodation make up a pattern of continuing
discriminatory acts, which culminated in her dismissal.
The continuing violation theory typically applies to hostile work
environment claims under Title VII. 10 “Unlike in a case alleging discrete
violations, a hostile environment plaintiff is not limited to filing suit on events

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
9 The prescriptive period for Plaintiff’s ADA, Rehabilitation Act, and Title IX claims
is one-year as dictated by state tort law. Boyle v. Greenstein, No. 11-3192, 2012 WL
1932947, at *3 (E.D. La. May 29, 2012); Minnis v. Bd. of Sup’rs of Louisiana State Univ. &
Agric. & Mech. Coll., 55 F. Supp. 3d 864, 874 (M.D. La. 2014). The prescriptive period for
Plaintiff’s state law claims is also one year. La. Civ. Code art. 3492.
10 Johnson v. Fluor Corp., 181 F. Supp. 3d 325 (M.D. La. 2016).
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that fall within this statutory time period because her claim is comprised of a
series of separate acts that collectively constitute one unlawful employment
practice.” 11 “A continuing violation involves repeated conduct, and cannot be
said to occur on any particular day. It instead occurs over a series of days or
perhaps years and, in direct contrast to discrete acts, a single act of harassment
may not be actionable on its own.” 12
Unlike a hostile work environment claim, Plaintiff has alleged discrete
instances in which she alleges she was denied a reasonable accommodation for
her disability. She alleges that in 2011 her request to be relieved of the
obligation to participate in a philanthropic event put on by the LSU School of
Medicine was denied. She alleges that she thereafter requested to skip a
required social event and that request was also denied. In summer of 2013,
Plaintiff requested test-taking accommodations because she was suffering a bipolar manic episode, but that request was likewise denied. Each of these
instances would alone support a claim for failure to provide reasonable
accommodations. 13 “The continuing violation doctrine does not apply when ‘the
relevant discriminatory actions alleged in the complaint [are] the sort[s] of
discrete and salient event[s] that should put an employee on notice that a cause
of action has accrued.’” 14 Accordingly, the continuing violation doctrine does
not apply to save Plaintiff’s reasonable accommodation claims from dismissal.
Plaintiff’s claims that arose outside of the one year limitation—or before

Id. (internal quotations omitted).
Jurach v. Safety Vision, LLC, 72 F. Supp. 3d 698, 707 (S.D. Tex. 2014), aff’d, 642 F.
App’x 313 (5th Cir. 2016) (internal quotations omitted) (quoting Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 (2002).
13 The Court does not however make any finding as to whether these claims for denial
of reasonable accommodation would have been successful if they were not time-barred.
14 Id. (quoting Windhauser v. Bd. of Supervisors for Louisiana State Univ. & Agr. &
Mech. Coll., 360 Fed.Appx. 562, 566 (5th Cir. 2010)). See Henson v. Bell Helicopter Textron,
Inc., 128 F. App’x 387, 391 (5th Cir. 2005).
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November 13, 2014—are time barred. This includes the aforementioned claims
for reasonable accommodation. Only Plaintiff’s claims arising out of the denial
of readmission remain.
B. Failure to State a Claim
Next, Defendant argues that Plaintiff fails to state a claim under the
ADA, Rehabilitation Act, Title IX, or state law. It argues that Plaintiff cannot
establish that its actions were discriminatory or refute its legitimate reason
for its actions.

Defendant contends that Plaintiff was required to be

readmitted after her medical leave because she was on academic probation at
the time that she took leave.

Defendant states that its decision to deny

readmission was based solely on academic concerns.
1. The Rehabilitation Act and the ADA
The Rehabilitation Act and the ADA both prohibit discrimination
against individuals with disabilities. “The Rehabilitation Act and the ADA are
judged under the same legal standards, and the same remedies are available
under both Acts.” 15 “To establish a claim under either statute in the context of
a student excluded from an educational program, a plaintiff must prove that:
(1) [s]he has a disability; (2) [s]he is otherwise qualified to participate in the
defendant’s program; and (3) [s]he was excluded from the program on the basis
of [her] disability.” 16 “A plaintiff asserting a private cause of action for
violations of the ADA or the RA may only recover compensatory damages upon
a showing of intentional discrimination.” 17
Defendant alleges that Plaintiff cannot prove either that she was
qualified to continue her studies or that she was denied readmission based on

Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).
Maples v. Univ. of Texas Med. Branch at Galveston, 901 F. Supp. 2d 874, 879–80
(S.D. Tex. 2012), aff’d, 524 F. App’x 93 (5th Cir. 2013).
17 Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002).
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her disability. Plaintiff points out that she was clearly qualified to participate
as a student at LSU prior to her medical leave and argues that she was denied
readmission because she was a pregnant student with bipolar disorder.
Plaintiff contends that “[h]ad she not taken medical leave, she would have
never been expelled from LSU.” 18
“[C]laims of disability discrimination may be established through direct
or circumstantial evidence.” 19 This Court finds that Plaintiff has submitted
sufficient circumstantial evidence to create an issue of material fact regarding
her denial of readmission to the LSU School of Medicine. As Plaintiff points
out, she was allowed to repeat her second year on academic probation prior to
taking medical leave. Then, upon her return from medical leave she was
denied readmission. Defendants do not point to any other change in Plaintiff’s
circumstances between these decisions. Circumstantially at least, these facts
would seem to indicate that Plaintiff’s medical leave or disabilities may have
had at least some bearing on Defendant’s decision to deny readmission.
Defendant’s

non-discriminatory

explanation—academic

reasons—could

therefore be found to be pretextual. This circumstantial evidence is enough to
defeat summary judgment. Whether or not she was qualified and whether or
not she was denied readmission because of her disability are issues of fact best
left to a jury.
2. Title IX
Title IX provides that, “No person ... shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program.” 20 Plaintiff alleges that she was
denied readmission on the basis of her pregnancy.
Doc. 30, p.10.
Maples, 901 F. Supp. 2d at 880.
20 20 U.S.C. § 1681.
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“To state a claim under

Title IX requires plaintiff to allege that defendant (1) received federal financial
assistance, and (2) excluded [her] from participation in defendant educational
programs because of [her] sex.” 21

Title IX has been construed to include

discrimination on the basis of pregnancy. 22 As discussed above, Plaintiff has
provided sufficient circumstantial evidence to defeat summary judgment on
the issue of Defendant’s reason for denying her readmission to the LSU School
of Medicine.
3. State Law Claims
In her Complaint, Plaintiff brings claims of negligence and intentional
infliction of emotional distress under Louisiana law. Defendant has moved for
summary judgment on these claims. Plaintiff has provided no argument or
evidence in support of these claims. Plaintiff’s Complaint is devoid of any
allegation of a duty that Defendant has breached. In addition, her allegations
against Defendant do not rise to the outrageous and extreme level required to
succeed on a claim for intentional infliction of emotional distress. Accordingly,
Plaintiff cannot succeed on her state law claims, and they are dismissed.
CONCLUSION
For the foregoing reasons, Defendant’s Motion is GRANTED IN PART.
Plaintiff’s claims that arose prior to November 13, 2014 are DISMISSED
WITH PREJUDICE as prescribed. Plaintiff’s state law claims of negligence
and intentional infliction of emotional distress are DISMISSED WITH
PREJUDICE as well.

Plaintiff’s claim of discrimination under the ADA,

Rehabilitation Act, and Title IX regarding the denial of readmission remains.

Easley v. Univ. of Texas at Arlington, 984 F. Supp. 2d 631, 635 (N.D. Tex. 2013).
See Conley v. Nw. Florida State Coll., 145 F. Supp. 3d 1073, 1079 (N.D. Fla. 2015);
Varlesi v. Wayne State Univ., 909 F. Supp. 2d 827, 854 (E.D. Mich. 2012).
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New Orleans, Louisiana this 26th day of January, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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