Pegues v. Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, et al.

Filing 57

ORDER AND REASONS - IT IS ORDERED that the 41 Motion to Dismiss, filed by Defendant Board of Supervisors of Louisiana State University and Agriculture and Mechanical College, LSU School of Dentistry and Faculty Dental Practice be and hereby is GRAN TED as to Counts 1 and 2 of Plaintiff Teresa Pegues' Second Amended Complaint, which she brings under Title II of the Americans with Disabilities Act. Plaintiff's claims under Title II are DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plai ntiff's request for leave to amend her complaint is DENIED. FURTHER ORDERED that this case be and hereby is REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Susie Morgan on 4/9/19. (Attachments: # 1 Remand Letter)(sbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERESA PEGUES,
Plaintiff

CIVIL ACTION

VERSUS

NO. 18-2407

THE BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL
COLLEGE, LSU SCHOOL OF DENTISTRY
AND FACULTY DENTAL PRACTICE,
Defendant

SECTION "E" (1)

ORDER AND REASONS
Before the Court is a motion to dismiss, filed by Defendant Board of Supervisors of
Louisiana State University and Agriculture and Mechanical College, LSU School of
Dentistry and Faculty Dental Practice (“LSU”). 1 The motion is opposed. 2 For the reasons
that follow, the motion is GRANTED as to Counts 1 and 2 of Plaintiff’s Second Amended
Complaint. The Court REMANDS the remaining state law claim to the Civil District
Court for the Parish of Orleans.
BACKGROUND
Plaintiff Teresa Pegues alleges she was a dental student at the LSU School of
Dentistry diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in October
2015. 3 She alleges she needed extra time on examinations because of her ADHD, but
several LSU professors told her “extra time would not be ‘necessary.’” 4 Plaintiff alleges
that, in June 2016, she was told she failed a course and received two letters of dismissal

R. Doc. 41.
R. Doc. 43.
3 R. Doc. 18 at 3, ¶ 8; 4, ¶ 11(E).
4 Id. at 4–5, ¶ 11(F).
1

2

1

from LSU. 5 She alleges she met with Deans Henry Gremillion and Sandra Andrieu on July
5, 2016 to discuss accommodations for her ADHD. 6 She alleges she was dismissed from
the LSU School of Dentistry on July 15, 2016.7
On June 30, 2017, Plaintiff filed a petition in Louisiana state court alleging
Defendant LSU wrongfully discriminated against her and dismissed her from the LSU
School of Dentistry. 8 The case was removed to this Court on March 6, 2018. 9 On March
13, 2018, Defendant moved to dismiss all claims against it pursuant to Federal Rule of
Civil Procedure 12(b)(6). 10 On May 3, 2018, the Court ordered Plaintiff to file an amended
complaint to clarify her claims and the factual allegations on which those claims are
based. 11 Plaintiff filed an amended complaint on May 18, 2018.12 She states three claims:
(1) failure to accommodate her disability in violation of Title II of the Americans with
Disabilities Act (“ADA”), 13 (2) disability-based discrimination in violation of the ADA, and
(3) disability-based discrimination in violation of Louisiana law. 14 She requests damages,
injunctive relief in the form of reinstatement in the LSU School of Dentistry, declaratory
relief, and attorneys’ fees and costs. 15 On June 8, 2018, Defendant filed a motion to
dismiss the amended complaint. 16
On August 27, 2018, the Court ordered Plaintiff to amend her complaint again to
address the issue of whether her claims under Title II of the ADA are barred by sovereign

Id. at 8, ¶ 11(U); 9, ¶ 11(Z).
Id. at 9, ¶ 11(BB).
7 Id. at ¶ 11(EE).
8 R. Doc. 1-2.
9 R. Doc. 1.
10 R. Doc. 4.
11 R. Doc. 17.
12 R. Doc. 18.
13 42 U.S.C. § 12131 et seq.
14 LA. REV. STAT. 46:2252 et seq.
15 R. Doc. 18 at 17.
16 R. Doc. 24.
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immunity. 17 Plaintiff filed her Second Amended Complaint on September 17, 2018,
incorporating by reference the claims in her Amended Complaint and stating her claims
are not barred by sovereign immunity because LSU removed this case to this Court. 18 The
Court denied as moot without prejudice LSU’s motion to dismiss. 19
On September 24, 2018, LSU filed the instant motion. 20 LSU argues Plaintiff’s
claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, and alternatively, that they should be dismissed because they are barred by
sovereign immunity. Plaintiff opposes. 21
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.” 22 Whether a claim is barred by
sovereign immunity bears on this Court’s jurisdiction. 23 To the extent LSU argues
Plaintiff’s Title II claims are barred by sovereign immunity, the Court construes the
instant motion as a motion to dismiss challenging the Court’s subject-matter jurisdiction
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. 24 Under Rule 12(b)(1),
“[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the case.” 25 “Lack of subject-matter
jurisdiction may be found in the complaint alone, the complaint supplemented by the

R. Doc. 39.
R. Doc. 40.
19 R. Doc. 42.
20 R. Doc. 41.
21 R. Doc. 43.
22 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
23 See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002) (“[W]e may consider this
[sovereign immunity] issue sua sponte because it bears on this court's subject-matter jurisdiction.” (citing
Burge v. Parish of St. Tammany, 187 F.3d 452, 465–66 (5th Cir.1999))).
24 See FED. R. CIV. P. 12(b)(1).
25 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
17

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undisputed facts as evidenced in the record, or the complaint supplemented by the
undisputed facts plus the court’s resolution of the disputed facts.” 26
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 27 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 28
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 29 The court, however, does not accept as true legal conclusions or mere
conclusory statements, and “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” 30 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient. 31
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 32 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.” 33 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 34

In re FEMA, 668 F.3d at 287.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
29 Id.
30 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
31 Iqbal, 556 U.S. at 663, 678 (citations omitted).
32 Twombly, 550 U.S. at 555.
33 Id. (quoting FED. R. CIV. P. 8(a)(2)).
34 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
26
27

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LAW AND ANALYSIS
Generally, when “grounds for dismissal may exist under both Rule 12(b)(1) and
Rule 12(b)(6), the Court should, if necessary, dismiss only under the former without
reaching the question of failure to state a claim.” 35 In this case, LSU states two bases for
its argument that this Court lacks jurisdiction over Plaintiff’s Title II claims: (1) Louisiana
has not waived its sovereign immunity for Title II claims 36 and (2) Congress did not
validly abrogate sovereign immunity for Plaintiff’s claims 37 under the Supreme Court’s
decision in United States v. Georgia. 38 LSU argues that, under Georgia, the Court should
first determine whether Plaintiff states a claims for Title II violations before considering
sovereign immunity.
Because sovereign immunity bears on the Court’s subject-matter jurisdiction, the
Court must first address whether the State of Louisiana has waived its sovereign
immunity for Plaintiff’s claims. 39 The Court finds the State has waived its immunity to
suit in federal court but has not waived immunity from liability. The Court then turns to
whether Congress validly abrogated sovereign immunity under the three-part test laid out
in Georgia. LSU is correct that, before the Court reaches the Constitutional issue of
abrogation at the third step of the Georgia analysis, the first step requires the Court to
determine “which aspects of the State’s alleged conduct violated Title II” 40 in an analysis
analogous to one under Rule 12(b)(6). Under Georgia step one, the Court finds Plaintiff
has stated a claim under Title II as to both Counts of her Second Amended Complaint.
Valdery v. Louisiana Workforce Comm’n, No. CIV.A. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept.
10, 2015).
36 R. Doc. 41-1 at 22–23.
37 Id. at 23–24.
38 546 U.S. 151 (2006).
39 In cases in which a state has waived its sovereign immunity, a court does not reach the constitutional
issue of abrogation and turns to the merits of the case. See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272,
287 (5th Cir. 2005)
40 Georgia, 546 U.S. at 159.
35

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Under the remaining steps, the Court finds Congress did not validly abrogate sovereign
immunity as to LSU’s alleged conduct.
The Court then turns to Plaintiff’s state law claims and remands them to state
court.
I.

The State of Louisiana has not waived its sovereign immunity from
liability with respect to Plaintiff’s Title II claims.
Plaintiff brings claims under Title II against Defendant LSU, an instrumentality of

the State of Louisiana. 41 In its order of August 27, 2018, the Court ordered Plaintiff to
address the issue of sovereign immunity. 42 In her Second Amended Complaint, Plaintiff
states this case is not barred by sovereign immunity because it was removed from state
court. 43
“Sovereign immunity consists of two separate and different kinds of immunity,
immunity from suit and immunity from liability.” 44 A state may waive or “relinquish its
immunity from suit while retaining its immunity from liability, or vice versa.” 45 When a
state removes a case to federal court, it “voluntarily invoke[s] the jurisdiction of the
federal courts and waive[s] its immunity from suit in federal court.” 46 Whether the state
retains “a separate immunity from liability is an issue that must be decided according to
that state’s law.” 47 In this case, Defendant LSU removed this case from state court. 48 As a
result, LSU has waived its immunity from suit in this Court.

See Pastorek v. Trail, 248 F.3d 1140 (5th Cir. 2001) (unpublished table decision) (“[T]he LSU Board is
an ‘arm of the state’ that enjoys Eleventh Amendment immunity.”).
42 R. Doc. 39.
43 R. Doc. 40 at 1.
44 Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 254 (5th Cir. 2005).
45 Id. at 255.
46 Id. (citing Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613 (2002)).
47 Id.
48 R. Doc. 1.
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The Court turns to whether the State of Louisiana has waived immunity from
liability for Plaintiff’s claims under Title II of the ADA. The Court considers whether the
State of Louisiana would have had immunity from liability if the Title II claim had been
brought in state court. 49 Under Louisiana law, two provisions of the Louisiana
constitution govern whether the state has waived sovereign immunity. Article 12, § 10(A)
of the Louisiana Constitution provides the state is not “immune from suit and liability
in contract or for injury to person or property.” 50 Article 1, § 26, states the people of
Louisiana “have the sole and exclusive right of governing themselves as a free and
sovereign state” and retain “every power, jurisdiction, and right” not delegated to
Congress. 51 In light of these constitutional provisions, the Louisiana Supreme Court has
held the State of Louisiana has not waived its sovereign immunity for claims under the
Family Medical Leave Act. 52 The Louisiana Second Circuit Court of Appeal has held the
State of Louisiana has not waived its sovereign immunity for claims under Title I of the
ADA. 53
In Pace v. Bogalusa City Sch. Bd., a student challenged architectural barriers
under the Rehabilitation Act (“RA”), the Individuals with Disabilities Education Act
(“IDEA”), and Title II of the ADA.54 The Fifth Circuit held Louisiana waived sovereign
49 Jonathan R. Siegel, Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment,
52 DUKE L.J. 1167, 1235 (2003) (cited approvingly in Benzing, 410 F.3d at 255 n.25) (“[R]emoval of a case
by a state defendant should be understood to waive the defendant's special privilege from being sued in
federal court, . . . [but not] the defendant's immunity from any claims from which it would have been
immune in state court.”) (emphasis added); accord Trant v. Oklahoma, 754 F.3d 1158, 1173 (10th Cir. 2014)
(“A state does not gain an unfair advantage asserting in federal court an affirmative defense it would have
had in state court.”); Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013) (“[N]othing
in Lapides suggests that a state waives any defense it would have enjoyed in state court—including
immunity from liability for particular claims.”), cert. denied, 134 S.Ct. 958 (2014).
50 LA. CONST. art. 12, § 10(A).
51 LA. CONST. art. 1, § 26.
52 Holliday v. Bd. of Sup'rs of LSU Agr. & Mech. Coll., 2014-0585 (La. 10/15/14), 149 So. 3d 227, 228.
53 Reed-Salsberry v. State Through the Dep't of Pub. Safety & Corr., Youth Servs., Office of Juvenile Justice,
51,104 (La. App. 2 Cir. 2/15/17), 216 So. 3d 226, 230, writ denied sub nom. Reed-Salsberry v. State through
Dep't of Pub. Safety & Corr., Youth Servs., 2017-0494 (La. 5/26/17), 221 So. 3d 81.
54 403 F.3d at 276.

7

immunity under the RA and IDEA by accepting federal funding. 55 The Fifth Circuit did
not rule on whether Louisiana waived sovereign immunity under Title II, but held it made
no difference for challenges to architectural barriers. 56 In Covington v. McNeese State
University, the Louisiana Third Circuit Court of Appeal relied on Pace and held, in a
challenge to architectural barriers, that Louisiana waived its sovereign immunity under
Title II.57 Unlike in Pace and Covington, Pegues, does not challenge architectural barriers
at LSU. This Court is confident the Louisiana Supreme Court would hold that, 58 under
Louisiana law, the State of Louisiana has not waived its sovereign immunity for claims
under Title II of the ADA not related to architectural barriers.
II.

Congress did not validly abrogate sovereign immunity for Plaintiff’s
Title II claims.
Because Louisiana has not waived its sovereign immunity with respect to Plaintiff’s

Title II claims, the Court turns to whether Congress validly abrogated sovereign immunity
for the claims. Congress may abrogate state sovereign immunity if it “makes its intention
to abrogate unmistakably clear in the language of the statute” and “acts pursuant to a valid
exercise of its power under § 5 of the Fourteenth Amendment.” 59 An abrogation of
sovereign immunity under Section Five of the Fourteenth Amendment applies to suits in
state court as well as federal court. 60

Id. at 287.
Id. at 287–89.
57 2008-505 (La. App. 3 Cir. 11/5/08), 996 So. 2d 667, 673, writ denied, 2009-0069 (La. 3/6/09), 3 So. 3d
491.
58 When the Louisiana Supreme Court has not addressed an issue, the Court must “make an Erie guess and
determine . . . how that court would resolve the issue if presented with the same case.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Am. Int'l Specialty Lines Ins. Co. v. Canal Indem.
Co., 352 F.3d 254, 260 (5th Cir.2003)). When making this guess, the Court “employ[s] Louisiana’s civilian
methodology, whereby [it] first examine[s] primary sources of law: the constitution, codes, and statutes.”
Id.
59 Nev. Dep’t. of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).
60 See Alden v. Maine, 527 U.S. 706, 756 (1999); Holliday, 149 So. 3d at 228.
55

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The ADA clearly states Congress’s intent to abrogate state sovereign immunity.61
In United States v. Georgia, the Supreme Court established a three-part test to determine
whether, in a particular case, Title II’s abrogation of state sovereign immunity pursuant
to Section 5 of the Fourteenth Amendment is valid. 62 To make this determination, a court
must consider on a claim–by-claim basis:
(1)
(2)
(3)

which aspects of the State’s alleged conduct violated Title II;
to what extent such misconduct also violated the Fourteenth
Amendment; and
insofar as such misconduct violated Title II but did not violate the
Fourteenth Amendment, whether Congress’s purported abrogation
of sovereign immunity as to that class of conduct is nevertheless
valid. 63

A.

Count 1 states a claim for a Title II violation

Plaintiff brings Count 1 of her Second Amended Complaint against LSU under Title
II of the ADA, alleging LSU failed to accommodate her ADHD. 64 As the Fifth Circuit has
explained:
A claim for failure to accommodate under the ADA has the following
elements:
(1)
the plaintiff is a qualified individual with a disability;
(2)
the disability and its consequential limitations were known by the
covered institution; and
(3)
the covered institution failed to make reasonable accommodations
for such known limitations. 65
1.

Qualified Individual with a Disability

With respect to the first element, Defendant argues Plaintiff has not sufficiently
alleged she is a qualified individual with a disability. 66 The ADA defines “disability” as “a

See Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing 14 U.S.C. § 12202).
546 U.S. 151, 159 (2006).
63 Id.
64 R. Doc. 18 at 10–13.
65 Choi v. Univ. of Texas Health Sci. Ctr. at San Antonio, 633 F. App’x 214, 215 (5th Cir. 2015) (unpublished)
(citing Neely v. PSEG Tex., Ltd. P'ship, 735 F.3d 242, 247 (5th Cir. 2013)).
66 R. Doc. 41-1 at 16.
61

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physical or mental impairment that substantially limits one or more major life activities
of such individual.” 67 The statute specifies that “major life activities include, but are not
limited to, . . . learning, reading, concentrating, thinking, [and] communicating.” 68
In her Second Amended Complaint, Plaintiff incorporates by reference the
following allegations in her Amended Complaint:
[(1) Plaintiff] suffered from an adjustment disorder with mixed anxiety and
depressed mood and Attention Deficit Hyperactivity Disorder (“ADHD”),
which substantially limited her major life activities; and . . .
[(2) Plaintiff’s] health conditions substantially limited her major life
activities relative to school-related tasks such as learning, reading,
concentrating, thinking, and communicating. Due to her difficulty
concentrating, her study time was less productive. She took longer to
complete school-related tasks than she would if she had not been disabled,
she frequently found it difficult to study for long periods of time, and had
difficulty beginning and completing school-related tasks. 69
The Court finds Plaintiff has sufficiently alleged she had a disability under the ADA.
Defendant argues that, because Plaintiff rejected a reasonable accommodation, she
is not a qualified individual with a disability. 70 In support, Defendant cites cases under
Title I of the ADA, which in turn quote the regulations implementing Title I for the
proposition that if an individual with a disability “rejects a reasonable accommodation . . .
necessary to enable the individual to perform the essential functions of the position held
or desired, and cannot, as a result of that rejection, perform the essential functions of the
position, the individual will not be considered qualified.” 71 First, the regulations
implementing Title I of the ADA do not apply directly to Title II. Second, although Plaintiff
does allege she initially declined accommodations in October 2015 because she believed

42 U.S.C. § 12101(1)(A).
Id. at § 12101(2)(A).
69 R. Doc. 18 at 10, ¶ 12; 11, ¶ 14.
70 R. Doc. 41-1 at 16.
71 29 C.F.R. § 1630.9(d).
67

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she did not need them, 72 she also alleges she subsequently requested accommodations in
early 2016. 73
Defendant also argues that, because Plaintiff alleges other causes for her poor
academic performance, including a death in the family, an unfair examination, and
misgrading, her limitations were not attributable to her ADHD. Defendant cites no cases
in support of the proposition that a plaintiff is not considered to have a disability merely
because she alleges extraneous causes may have exacerbated the limitations caused by
her disability. Plaintiff has alleged sufficient facts to allege she was a qualified individual
with a disability under the ADA.
2.

Disability and Limitations Known by Institution

Defendant argues Plaintiff did not allege she alerted LSU to her disability and
limitations. Defendant cites Choi v. Univ. of Texas Health Sci. Ctr. at San Antonio, in
which the plaintiff was a dental student diagnosed with Attention Deficit Disorder
(“ADD”) who was dismissed from a dental school because of poor academic
performance. 74 In Choi, the student informed the school of his ADD diagnosis for the first
time during the dismissal process. 75 The Fifth Circuit affirmed the district court’s
dismissal of the student’s ADA claims for failure to state a claim because the student
“alleged insufficient facts to show that his disability and its consequential limitations were
known by the Dental School.” 76 The Fifth Circuit stated, “it is incumbent upon the ADA
plaintiff to assert not only a disability, but also any limitation resulting therefrom.” 77

R. Doc. 18 at 4, ¶ 11(E).
Id. at ¶ 11(F).
74 633 F. App’x at 215.
75 Id.
76 Id. at 216.
77 Id. (quoting Taylor v. Principal Financial Group., Inc., 93 F.3d 155 (5th Cir.1996)).
72
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In this case, Pegues alleges she notified the school of her ADHD upon learning of
her diagnosis in October 2015, well before the beginning of her dismissal process. 78
Although Plaintiff alleges she initially declined testing accommodations, she also alleges
that, in early 2016, she “discussed her potential need to be allowed extra time on
examinations, due to her disability, with several of her professors, including Dr. Larry
Bates (“Dr. Bates”), but was told that extra time would not be ‘necessary.’” 79 Defendant
characterizes this is a “generic and bare allegation” and argues the allegation is
insufficient under Rule 12(b)(6) because Plaintiff does not “identify[] (1) who she had
such alleged discussions with or (2) when she had such discussions.” 80 Defendant also
notes that Dr. Bates “is not alleged to have taught a course that [Plaintiff] failed.” 81
When ruling on a motion to dismiss, the Court accepts a true the facts alleged in
the complaint and determines whether Plaintiff’s claim to relief is plausible. 82 The Court
accepts as true Plaintiff’s allegation that she spoke to several professors about her need
for extra time. Unlike the student in Choi, Plaintiff alleges she notified the school of her
ADHD in October 2015, and she notified the school of the resulting limitations in early
2016, before her initial receipt of a dismissal letter in June 2016. Plaintiff need not specify
the date of the alleged discussions or the people with whom she had them in order to make
her claim plausible. The Court finds Plaintiff has sufficiently alleged that her ADHD and
its resulting limitations were known by LSU.

R. Doc. 18 at 4, ¶ (E).
Id. at 4–5, ¶ 11(F).
80 R. Doc. 41-1 at 17 n.56.
81 Id.
82 See Iqbal, 556 U.S. at 678.
78
79

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3.

Failure to Make Reasonable Accommodations

Defendant argues Plaintiff has not sufficiently alleged LSU failed to provide
reasonable accommodations. 83 Plaintiff makes three distinct factual allegations relating
to reasonable accommodations. First, Plaintiff alleges that, in November 2015, she
declined LSU’s offer of testing accommodations because she did not realize she needed
accommodations. 84 Second, Plaintiff alleges that, in early 2016, she discussed her
“potential need to be allowed extra time on examinations, due to her disability, with
several of her professors, . . . but was told that extra time would not be ‘necessary.’” 85
Third, Plaintiff alleges that, on July 5, 2016, after being told she failed a course and
receiving two letters of dismissal, she met with Deans Gremillion and Dr. Andrieu
“regarding accommodations for her disability.” 86
With respect to the first allegation, because Plaintiff declined accommodations in
November 2015, LSU cannot be liable for not providing accommodations at that time.
With respect to the second allegation, the Court finds Plaintiff has sufficiently
alleged LSU failed to provide her accommodations, despite her request. Defendant does
not address this allegation in the instant motion.
Defendant focuses its argument on the third allegation, arguing LSU “cannot be
liable for failing to accommodate a student who had already failed multiple classes and
had been notified of her dismissal.” 87 “[A] ‘second chance’ or a plea for grace is not an
accommodation as contemplated by the ADA.” 88 The Court agrees that, if Plaintiff alleged

R. Doc. 41-1 at 18.
R. Doc. 18 at 4, ¶ 11(E).
85 Id. at 4–5, ¶ 11(F).
86 Id. at 9, ¶ 11(BB).
87 R. Doc. 41-1 at 18.
88 Burch v. Coca-Cola Co., 119 F.3d 305, 320 n.14 (5th Cir. 1997) (citing Siefken v. Village of Arlington
Hgts., 65 F.3d 664, 666 (7th Cir. 1995)).
83

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that the first time she requested accommodations was after being notified of her
dismissal, LSU could not be liable for failing to accommodate her. However, because
Plaintiff alleges she requested an accommodation in early 2016, before she was notified
she failed a class and would be dismissed, Plaintiff has alleged sufficient facts to state a
plausible claim that LSU failed to accommodate her disability.
B.

Count 2 states a claim for a Title II violation

Plaintiff brings Count 2 against LSU for discrimination under Title II of the ADA. 89
In her Amended Complaint, she states Defendant “harassed the Plaintiff on the basis of
her disability, retaliated against her, limited her educational opportunities, expelled her
from the Dental School, and otherwise discriminated against her.” 90 Defendant argues
she fails to state a claim for disability-based harassment or retaliation. 91 In response to
the second motion to dismiss, Plaintiff represented she “has not asserted claims for
retaliation or harassment.” 92 Instead, she states Count 2 is based only on “discriminatory
expulsion from an academic institution in violation of Title II.” 93 To the extent Plaintiff
brought claims in her complaint for harassment and retaliation, those claims are
dismissed.
Title II prohibits discrimination by public entities, including LSU. 94 Title II
provides, “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or

R. Doc. 18 at 13, ¶ 21.
Id.
91 R. Doc. 41-1 at 19–20.
92 R. Doc. 27 at 15.
93 Id.
94 Title II defines “public entity” as “any State or local government [or] any department, agency, special
purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(A),
(B).
89

90

14

activities of a public entity, or be subjected to discrimination by any such entity.” 95 The
Fifth Circuit has listed the elements of a Title II discrimination claim as follows:
To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1)
that he has a qualifying disability; (2) that he is being denied the benefits of
services, programs, or activities for which the public entity is responsible,
or is otherwise discriminated against by the public entity; and (3) that such
discrimination is by reason of his disability.’ To recover monetary damages,
a plaintiff must prove that the discrimination was intentional. 96
The Court has found Plaintiff has alleged she has a qualifying disability.
In her Amended Complaint, Plaintiff alleges, “Defendant’s expulsion was due to
her ADHD and depression.” 97 In support, she cites several factual allegations. Plaintiff
alleges her professor Dr. Luis Infante made her take an “on-the-spot oral quiz” that was
not required of students without disabilities. 98 She also alleges Dr. Infante miscalculated
her grade because of his “animosity toward her because of her disability.” 99 Plaintiff
alleges Dean Toby Cheramie “berated” her and accused her of “making excuses” after she
requested an accommodation. The Court finds these allegations are sufficient to state a
claim that LSU intentionally discriminated against Plaintiff because of her disability. 100
C.

The alleged Title II violations do not violate the Fourteenth Amendment.

The alleged Title II violations in this case relate to LSU’s alleged failure to
accommodate Plaintiff’s disability and its alleged discriminatory termination. The second
prong of the Georgia test requires a court to determine the extent to which the state
government entity’s alleged violation of Title II of the ADA also violated the Fourteenth

42 U.S.C. § 12132.
Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011)
and citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)).
97 R. Doc. 18 at 13, ¶ 23.
98 Id.
99 Id. at 14, ¶ 23.
100 See Carter v. Orleans Par. Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984) (affirming motion to dismiss Title
II claims because of the plaintiff’s failure to allege the defendant’s treatment of his children was intentional
or “manifested discriminatory animus”).
95

96

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Amendment. 101 Section Five of the Fourteenth Amendment provides that “Congress shall
have power to enforce, by appropriate legislation, the provisions” of the Fourteenth
Amendment, including the Equal Protection Clause and the Due Process Clause. 102 This
permits Congress to create private remedies against the states for violations of the
Fourteenth Amendment. 103 As a result, “insofar as Title II creates a private cause of action
for damages against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” 104
Under the Equal Protection Clause, “[d]isabled persons are not a suspect class.” 105
As a result, classifications on the basis of disability are subject to rational basis scrutiny,
meaning they violate the Equal Protection Clause “if they lack a rational relationship to a
legitimate governmental purpose.” 106 Plaintiff does not allege LSU subjected her to a
classification on the basis of disability that lacked a rational relationship to a legitimate
governmental purpose. As a result, LSU’s alleged conduct does not violate the Equal
Protection Clause.
The Due Process Clause guarantees certain substantive fundamental rights, and a
violation of Title II violates the Due Process Clause when it prevents people with
disabilities from exercising those rights. 107 For example, when physical barriers prevent
people with disabilities from exercising their fundamental right of access to the courts, an
ADA violation also may violate the Due Process Clause. 108 However, “the Supreme Court
has never before recognized access to public education or freedom from disability
Georgia, 546 U.S. at 159.
U.S. CONST. amend. XIV, § 5.
103 Georgia, 546 U.S. at 158.
104 Id. at 159.
105 Douglas v. Gusman, 567 F. Supp. 2d 877, 886 (E.D. La. 2008) (citing City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985)).
106 Lane, 541 U.S. at 522.
107 Id. at 515.
108 See generally id.
101

102

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discrimination in education to be fundamental rights.” 109 As a result, no alleged Title II
violation in this case constitutes a deprivation of a substantive fundamental right under
the Due Process Clause. 110
The Due Process Clause also guarantees procedural protections against
deprivations of life, liberty, or property. 111 Plaintiff argues she has a liberty interest and a
property interest in her continuing education that is protected by the Due Process
Clause. 112 The Supreme Court has held students have a protected interest in their ability
to remain in school. 113 However, in Board of Curators of Univ. of Missouri v. Horowitz,
the Court has held there is a “significant difference between the failure of a student to
meet academic standards and the violation by a student of valid rules of conduct. This
difference calls for far less stringent procedural requirements in the case of an academic
dismissal.” 114 The plaintiff in that case was dismissed from medical school for academic
reasons. The Court held a hearing was not necessary and explained:
Academic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and administrative
fact-finding proceedings to which we have traditionally attached a fullhearing requirement. . . . The decision to dismiss respondent, by
comparison, rested on the academic judgment of school officials that she
did not have the necessary clinical ability to perform adequately as a
medical doctor and was making insufficient progress toward that goal. Such
a judgment is by its nature more subjective and evaluative than the typical
factual questions presented in the average disciplinary decision. Like the
Pace, 403 F.3d at 287.
In her original state court petition, Plaintiff brought a cause of action for “violation of substantive and
procedural due process,” invoking the Louisiana Constitution’s Due Process Clause. R. Doc. 1-2 at 10. She
stated the basis for her cause of action was her liberty and property interests in her education. To the extent
Plaintiff argues she brought a claim for violation of her substantive due process rights, she conflates
substantive due process, which protects certain fundamental rights, with procedural due process, which
prohibits the deprivation of protected liberty and property interests without adequate procedures.
111 See Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
112 R. Doc. 43 at 6–13.
113 Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 85 (1978) (“[D]ue process requires, in
connection with the suspension of a student from public school for disciplinary reasons, ‘that the student
be given oral or written notice of the charges against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of the story.’”) (quoting Goss v.
Lopez, 419 U.S. 565, 581 (1975)).
114 Id. at 86.
109
110

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decision of an individual professor as to the proper grade for a student in
his course, the determination whether to dismiss a student for academic
reasons requires an expert evaluation of cumulative information and is not
readily adapted to the procedural tools of judicial or administrative
decisionmaking.
Under such circumstances, we decline to ignore the historic judgment of
educators and thereby formalize the academic dismissal process by
requiring a hearing. 115
In this case, Plaintiff argues her dismissal was partially disciplinary in nature and
that she was not provided sufficient process in connection with her dismissal. 116 She
argues the Court should infer that her dismissal not based on her failing a course, but
rather “a result of some other aspect of her behavior or personality.” 117 Nowhere in her
petition does she allege any disciplinary violation that led to her dismissal. In contrast,
she makes numerous factual allegations that the stated reason for her dismissal was
academic. 118 The Court finds Plaintiff has not stated sufficient facts to allege her dismissal
was disciplinary in nature. Because Plaintiff’s dismissal was academic, based on the facts
alleged in the Second Amended Complaint, no hearing was required. LSU’s alleged Title
II violation does not constitute a deprivation of Plaintiff’s procedural due process rights.
The Court finds no Fourteenth Amendment violation and proceeds to the third prong of
the Georgia analysis.

Id. at 89–90.
Id. at 9–13.
In her original state court petition, Plaintiff alleged her dismissal was disciplinary, and LSU did not provide
her with process sufficient to satisfy the requirements of the Louisiana Constitution. R. Doc. 1-2 at 10–11.
LSU filed a peremptory exception of no cause of action, arguing the due process protections under the
Louisiana and federal Constitutions are coextensive, and that, under both, no hearing is required for
academic dismissals. R. Doc. 1-5 at 12–13. LSU argued Plaintiff’s dismissal was academic in nature, and she
was provided sufficient process for an academic dismissal. Id. at 13–14. The state court held an oral hearing
on the motion, sustained LSU’s exception without assigning written reasons, and granted Plaintiff leave to
file an amended petition. R. Doc. 1-8 at 2.
117 R. Doc. 43 at 10.
118 R. Doc. 18 at 6–10, ¶¶ 11(O), (P), (R), (S), (T), (U), (V), (X), (Z), (CC), (DD), (FF).
115

116

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D.

The alleged Title II violations do not implicate the Fourteenth Amendment.

Courts reach the third prong of the Georgia test on summary judgment only in
cases in which there is a genuine issue of material fact as to whether a defendant’s conduct
violated Title II of the ADA, but the alleged conduct did not violate the Fourteenth
Amendment. 119 As a result, in this case, the Court must consider whether, as to the alleged
conduct, Title II of the ADA was a valid exercise of Congressional authority under Section
Five of the Fourteenth Amendment. 120 In City of Boerne v. Flores, the Supreme Court
held that, in order for Congress to exercise its enforcement power under Section Five,
“[t]here must be a congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.” 121 Even if Congress proscribes conduct that
does not directly violate the Fourteenth Amendment, legislation is a valid exercise of
Congressional power under Section Five if this “congruence and proportionality” test is
satisfied. 122 If Title II is congruent and proportional to the constitutional right a claim
implicates, the ADA validly abrogates sovereign immunity for the claim. 123 There must be
a “narrow category of state action that focuse[s] the analysis on a specific individual
right.” 124
In this case, Plaintiff does not explicitly state the Fourteenth Amendment right she
argues is implicated by Defendants’ conduct. There is no substantive due process right to
“access to public education or freedom from disability discrimination in education.” 125 As
a result, Plaintiff’s claims do not implicate substantive due process. The Court has found,
Georgia, 546 U.S. at 159.
See id.
121 521 U.S. 507, 520 (1997).
122 Id.
123 Id.; see also Shaikh v. Texas A&M Univ. Coll. of Med., 739 F. App’x 215, 225 (5th Cir. 2018) (finding
erroneous a district court’s holding that “state sovereign immunity bars everything but constitutional
claims”).
124 Guttman v. Khalsa, 669 F.3d 1101, 1120 (10th Cir. 2012).
125 Pace, 403 F.3d at 287.
119

120

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based on the allegations in the Second Amended Complaint, that Plaintiff has not alleged
her dismissal was disciplinary. Plaintiff’s claims do not implicate her procedural due
process rights. The Court finds the alleged Title II violations do not implicate a right
guaranteed by the Fourteenth Amendment, and Congress did not validly abrogate
sovereign immunity for Plaintiff’s claims under Title II of the ADA.
As a result, the Court dismisses Plaintiff’s Title II claims for damages, declaratory
relief, injunctive relief, and attorneys’ fees and costs.
III.

The Court denies Plaintiff’s request for leave to amend to name as a
Defendant an LSU official.
Plaintiff’s demand for injunctive relief, in the form of reinstatement into the LSU

School of Dentistry, 126 has been dismissed for lack of federal jurisdiction. Although LSU
is entitled to sovereign immunity, a claim for injunctive relief brought against an LSU
official in his or her official capacity may be sustained under Ex parte Young. 127 Plaintiff
requests leave to amend her complaint to name as a defendant “the appropriate LSU
Dental School official(s) with authority to expel and reinstate students,” and to withdraw
her claim for damages. 128 Plaintiff has amended her petition three times, once pursuant
to a state court order and twice pursuant to an order of this Court. 129 The Court will not
grant Plaintiff leave to amend a fourth time. 130

R. Doc. 18 at 17.
209 U.S. 123 (1908).
128 R. Doc. 43 at 13.
129 R. Docs. 1-11, 18, 40.
130 Plaintiff seeks the same injunctive relief under Louisiana law. R. Doc. 18 at 17. LA. REV. STAT. 46:2255
provides allows plaintiffs with disabilities to seek “any and all remedies available under the law . . . including
but not limited to compensatory damages, attorney fees, costs, and any other relief deemed appropriate.”
Because Plaintiff may seek injunctive relief from LSU under Louisiana law, she is not unduly prejudiced by
the Court’s denial of her request for leave to amend her complaint.
126
127

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IV.

The Court declines jurisdiction over Plaintiff’s state law claims.
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by

statute, they lack the power to adjudicate claims.” 131 28 U.S.C. § 1367 provides:
[I]n any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the
United States Constitution. 132
The statute further provides, “The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if the district court has dismissed all claims
over which it has original jurisdiction.” 133
When LSU removed this case to this Court, it invoked the Court’s federal question
jurisdiction under 28 U.S.C. § 1331 because Plaintiff asserted claims under the ADA, a
federal law. 134 The Court has found it does not have jurisdiction over Plaintiff’s ADA
claims and accordingly has dismissed them. The Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims. 135 As a result, the Court remands this claim
to the Civil District Court for the Parish of Orleans.
CONCLUSION
IT IS ORDERED that the motion to dismiss, filed by Defendant Board of
Supervisors of Louisiana State University and Agriculture and Mechanical College, LSU
School of Dentistry and Faculty Dental Practice be and hereby is GRANTED as to Counts
1 and 2 of Plaintiff Teresa Pegues’ Second Amended Complaint, which she brings under

In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
132 28 U.S.C. § 1367(a).
133 28 U.S.C. § 1367(c)(3).
134 R. Doc. 1 at 3.
135 Plaintiff brings claims for declaratory and injunctive relief and for compensatory damages under state
law. R. Doc. 18 at 17.
131

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Title II of the Americans with Disabilities Act. 136 Plaintiff’s claims under Title II are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s request for leave to amend her
complaint is DENIED.
IT IS FURTHER ORDERED that this case be and hereby is REMANDED to
the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana, this 9th day of April, 2019.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

136

R. Doc. 41.

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