Innes et al v. The Board of Regents of the University System of Maryland et al

Filing 64

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/1/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH INNES, et al.
:
v.

:

Civil Action No. DKC 13-2800

:
THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF MARYLAND,
et al.

:
:

MEMORANDUM OPINION
Presently
disability

pending

and

discrimination

ready
case

is

for

resolution

the

motion

in

to

this

dismiss

Plaintiffs’ second amended complaint, filed by Defendants Board
of Regents of the University System of Maryland (“the Board of
Regents),

the

University

of

Maryland

College

Park

(“the

University of Maryland”), and Wallace D. Loh (“President Loh” or
“Dr. Loh”).

(ECF No. 34).

The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.

For the following reasons, the motion to

dismiss will be granted in part and denied in part.
I.

Background1
Plaintiffs

Daniel

Rinas

(“Mr. Rinas”) and Sean Markel (“Mr. Markel”) are deaf.

They

1

Dr.

Joseph

Innes

(“Dr.

Innes”),

The facts are drawn from the second amended complaint.
(ECF No. 33).

regularly

attend

sporting

events

–

including

football

and

basketball games - at the Capital One Field at Byrd Stadium
(“Byrd Stadium”) and the Comcast Center.

(ECF No. 33 ¶¶ 2-4).

The Board of Regents is the governing body for all University of
Maryland campuses, of which the University of Maryland, College
Park is the “flagship” campus.

(Id. ¶ 5).

Plaintiffs assert

that Byrd Stadium and the Comcast Center are located on the
University of Maryland’s main campus in College Park.
10).

(Id. ¶

Dr. Wallace Loh is the President of the University of

Maryland.

All

three

Plaintiffs

also

regularly

access

Defendants’ athletics website – TerpsTV – and attempt to watch
videos on this website.
videos

presented

highlights
narrated
teams.

and

web

with

(Id. ¶ 12).
speaking

interviews

content

also

with

The website contains

individuals
players.

includes

discussing

(Id.

complete

¶

game

16).

games

for

The
some

For instance, Plaintiffs assert that during the week of

October 4, 2013, TerpsTV streamed a women’s soccer game against
North Carolina State with audio commentary by two individuals.
On October 12, 2013 TerpsTV streamed audio commentary for a live
football game.

(Id. ¶ 17).

None of the audio was captioned.

Defendants’ venues at Byrd Stadium and the Comcast Center
have public address systems and other systems in the stadium
bowls

and

concourse

areas

that

project

information

aurally,

including referee calls, play-by-play commentary, song lyrics,
2

and safety and emergency information.
cannot hear these announcements.
the

aural

content

on

(Id. ¶ 13).

Plaintiffs

Plaintiffs also cannot hear

Defendants’

website.

(Id.

¶

14).

Defendants’ venues also have visible electronic scoreboards and
ribbon boards, and the Comcast Center has a four-sided visual
display hanging over center court, which Plaintiffs believe to
be

a

Sony

Jumbotron.

(Id.

¶

15).

Plaintiffs

assert

that

captioning can be – but is not - displayed on Jumbotrons, LED
ribbon boards, and scoreboards located throughout Defendants’
venues.

(Id.

¶

20).

Plaintiffs

state

that

“[t]hrough

captioning, spoken and other auditory/aural information is made
accessible to individuals who are deaf or hard of hearing.”
(Id. ¶ 19).

Captioning can also be placed on video displayed on

the University of Maryland athletic websites.

Plaintiffs assert

that Defendants do not display captioning on Jumbotrons, LED
ribbon

boards,

captioned.

or

scoreboards,

nor

is

streaming

web

content

(Id. ¶¶ 16, 22).

Dr. Innes contacted the University of Maryland “Terrapin
Club” on numerous occasions, including prior to 2007, to request
that Defendants provide captioning for football and basketball
games.

(Id. ¶ 25).

Defendants renovated Byrd Stadium in 2007,

but, despite repeated requests from Dr. Innes, did not upgrade
the scoreboards to provide captioning for referee calls, playby-play

commentary,

song

lyrics,
3

safety

and

emergency

information, half-time entertainment, post-game conferences, or
any other aural information projected into the stadium bowls or
concourse areas before, during, or after the games.

(Id. ¶ 27).

On February 18, 2013, Plaintiffs sent a letter to Defendants
again

requesting

address

captions

systems,

the

for

announcements

scoreboards,

LED

made

ribbon

on

public

boards,

and/or

Jumbotron at Byrd Stadium and the Comcast Center and for those
captions to be visible from all seats in each venue.

(Id. ¶

28).
Plaintiffs

contend

that

Defendants

started

to

provide

captioning at some point during the 2013-2014 football season at
Byrd Stadium “by providing captions that are supposed to be
accessible on smart phones or tablet devices.”

(Id. ¶ 29).

Plaintiffs assert that captioning on hand-held device or tablets
does

not

Plaintiffs

provide
assert

effective
that

communication.

individuals

who

are

Specifically,
deaf

and

who

communicate through the use of American Sign Language (“ASL”)
must use their hands to speak.

Plaintiffs argue:

[t]hey are, therefore, unable to speak with
anyone while holding a device on which they
would read captions.
Thus, unlike hearing
fans, deaf fans would not be able to comment
to one another about the progress of a game.
Also unlike hearing fans deaf fans would be
unable to hold a snack and drink while
reading
captions.
On
information
and
belief, there are no cupholders or other
stands on which to place food and beverages
in the seating bowl of Byrd Stadium.
4

(Id. ¶ 30).

Plaintiffs also maintain that many smart phone and

tablet devices cannot be read in bright sunlight, thus deaf
individuals would not be able to read captions if football games
are played on sunny days.
a

website

to

a

smart

(Id. ¶ 31).
phone

or

Streaming captions from

tablet

requires

a

strong,

uninterrupted internet signal; “[t]he proximity of thousands of
other

fans

tablets

using

during

the

a

internet

football

or

on

their

smart

basketball

phones

game

and/or

weakens

and

interrupts the signal so that the captions do not appear on the
devices in a timely fashion.”

(Id. ¶ 33).

Plaintiffs maintain

that the communication provided by a tablet or handheld device
is not timely and does not ensure that deaf or hard of hearing
fans have equal access to games.

Moreover, “[u]se of hand-held

devices for captions would prevent deaf fans from observing what
is being projected on a video board of Jumbotron while reading
what the stadium announcer is saying.”

(Id. ¶ 36).

Plaintiffs

aver that use of hand-held devices also would require “difficult
visual adjustments between observing live action at a distance
and

close

vision

for

reading

captions

on

a

small

screen.”

(Id.).
As

an

example

of

the

shortcomings

with

using

hand-held

devices for captioning, Plaintiffs refer to an October 12, 2013
football game, which Dr. Innes and a number of deaf friends

5

attended at the University of Maryland.

Dr. Innes asserts that

he went to fan assistance and asked for information about how to
read captions on the handheld device.

According to Dr. Innes,

he “was given a note that said the web site was not working and
captions would be unavailable.”

(Id. ¶ 34).

Dr. Innes asserts

that the individual who wrote the note never informed him about
whether the site began to operate, although she said that she
would.
Plaintiffs
Maryland,
official

the

filed
Board

capacity,

Plaintiffs

later

(ECF No. 6).

a

complaint

of

against

the

and

President

September

on

Regents,

24,

2013.

University

amended

the

complaint

on

Loh,

in

his

No.

(ECF

October

of

1).

16,

2013.

The University of Maryland answered the complaint

on October 30, 2013 (ECF No. 8), and simultaneously joined in a
motion to dismiss filed by the Board of Regents and President
Loh (ECF No. 9).

Plaintiffs filed an unopposed motion to file a

second amended complaint, which the undersigned granted.
No.

32).

against

all

Plaintiffs

submitted

Defendants

on

a

January

second
8,

amended

2014.

(ECF

(ECF

complaint
No.

33).

Plaintiffs’ second amended complaint asserts two claims against
all

Defendants:

(1)

discrimination

under

Title

II

of

the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131; and
(2) discrimination under the Rehabilitation Act, 29 U.S.C. §
504.

(ECF No. 33, at 8-10).

Plaintiffs assert that Defendants
6

have failed to provide auxiliary aids and services to ensure
effective communication with individuals who are deaf or hard of
hearing

concerning

Defendants’
stadium

aural

athletic

bowls

and

Comcast Center.

information:

websites;

concourse

and

areas

(Id. at 9-10).

(2)
at

(1)

available

projected

Byrd

Stadium

on

into

the

and

the

Plaintiffs seek compensatory

damages, declaratory judgment, injunctive relief, and “all other
and further relief as this Court may deem just and proper.”
(Id. at 10-11).
2014,

Plaintiffs

Defendants moved to dismiss on January 22,
opposed

the

motion,

and

Defendants

replied.

(ECF Nos. 34, 38, 39).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further

7

factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

847

(4th

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[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.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court
Id.
8

to

draw

on

its

judicial

III. Analysis
A.

Statute of Limitations2

Defendants argue that Plaintiffs’ claims concerning Byrd
Stadium and the Comcast Center are time-barred.
at

16).3

The

ADA

and

limitation period.

Rehabilitation

Act

do

(ECF No. 34-1,
not

specify

a

Thus, courts “borrow” the most appropriate

or analogous state statute of limitations and apply it to the
federal

cause

of

action.

See

A

Soc’y

Without

A

Name

v.

Virginia, 655 F.3d 342, 347 (4th Cir. 2011), cert. denied, 132
S.Ct.

1960

(2012).

“Maryland

courts

apply

the

three-year

limitations period governing general civil actions to ADA and
Rehabilitation Act claims.”

Jeandron v. Bd. of Regents of Univ.

Sys. Of Md., 510 F.App’x 223, 226 (4th Cir. 2013) (citations
2

A motion to dismiss filed under Fed.R.Civ.P. 12(b)(6)
generally cannot reach the merits of an affirmative defense,
such as the defense that the claim is time-barred.
Goodman v.
th
Praxair, Inc., 494 F.3d 458, 464 (4
Cir. 2007).
“But in the
relatively rare circumstances where facts sufficient to rule on
an affirmative defense are alleged in the complaint, the defense
may be reached by a motion to dismiss filed under Rule
12(b)(6).”
Id.
As the Fourth Circuit noted, however, “[t]his
principle only applies, [], if all facts necessary to the
affirmative defense clearly appear[] on the face of the
complaint.”
Id. (internal citations omitted) (emphasis in
original). Although Plaintiffs believe that some of Defendants’
arguments in the motion to dismiss constitute affirmative
defenses inappropriate to consider on a motion to dismiss,
Plaintiffs do not make this argument with respect to the statute
of limitations defense.
3

As Plaintiffs point out, Defendants do not argue that the
statute of limitations has expired with respect to Plaintiffs’
claims that the athletic websites are inaccessible to deaf
people. (ECF No. 38, at 27 n.8).
9

omitted); see also Speciner v. NationsBank, N.A., 215 F.Supp.2d
622,

634

(D.Md.

2008)

(determining

that

“the

three

year

limitations period applicable to state law civil actions is the
most appropriate in the context of an ADA civil rights claim”);
Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244,
251 (D.Md. 2004) (holding that “the statute of limitations for
Rehabilitation Act claims in Maryland is three years”).
The parties disagree as to when a cause of action under the
Rehabilitation Act and the ADA accrues.

Defendants view this

dispute as an architectural barrier case and argue that the
statute of limitations begins to run upon completion of the
structure

or

alteration.

completion

of

its

most

recent

and

relevant

Defendants believe that Plaintiffs have known – or

as regular patrons of the University’s facilities, should have
known – “since 2007 and 2002 respectively, that [Byrd Stadium
and the Comcast Center] did not have the ‘line-of-sight’ and
‘hands-free’ display of information they now demand.”
34-1, at 17).

(ECF No.

Thus, Defendants believe that to be considered

timely, Plaintiffs needed to have filed their action by 2005 (as
to

the

Comcast

Plaintiffs

did

Center)

not

file

and
the

2010

(as

complaint

to

until

Byrd

Stadium).

September

2013.

Contrary to Defendants’ assertions, Plaintiffs are not alleging
that they are unable to access the athletic facilities at Byrd
Stadium or the Comcast Center, nor are they necessarily arguing
10

that architectural barriers preclude their participation in the
programs and activities at the University of Maryland.
Plaintiffs

assert

that

“Defendants

have

failed

Instead,

to

provide

auxiliary aids and services to ensure effective communication
with

individuals

who

are

deaf

or

hard

of

hearing,

such

as

Plaintiffs, with respect to aural information” projected at Byrd
Stadium and the Comcast Center.
(emphasis added).

(ECF No. 33 ¶¶ 41, 42, 47, 48)

The gravamen of Plaintiffs’ complaint is that

Defendants fail to provide effective communication for deaf fans
at athletic events and on the University of Maryland’s athletic
websites.

Plaintiffs assert that Defendants continue to repeat

the same violation that denies Plaintiffs meaningful access to
Defendants’ programs, services and activities.

Thus, Plaintiffs

maintain that the statute of limitations “begins to run anew
each and every time Plaintiffs attend a football or basketball
game at Byrd Stadium or Comcast Center and Defendants fail to
provide

the

auxiliary

aids

and

services

necessary

effective communication for the Plaintiffs.”

to

ensure

(ECF No. 28, at

27).
Title

II

imposes

an

affirmative

obligation

to

make

“reasonable modifications to rules, policies, or practices, the
removal

of

architectural,

communication,

or

transportation

barriers, or the provision of auxiliary aids and services” to
enable disabled persons to receive services or participate in
11

programs or activities.
Here,

Plaintiffs

participation
Maryland.

in

42 U.S.C. § 12131(2) (emphasis added).

assert
athletic

communication
events

held

barriers
at

the

to

their

University

of

“In general, to establish a continuing violation the

plaintiff must establish that the unconstitutional or illegal
act was a . . . fixed and continuing practice.”

Nat’l Adver.

Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)
(internal citations omitted).

“[I]f the plaintiff can show that

the illegal act did not occur just once, but rather ‘in a series
of

separate

acts[,]

and

if

the

same

alleged

violation

was

committed at the time of each act, then the limitations period
begins anew with each violation.’”
F.3d

at

348

(quoting

Nat’l

A Soc’y Without A Name, 655

Adver.

Co.,

947

F.2d

at

1167).

Continuing unlawful acts are distinguishable from the continuing
ill effects of an original violation because the latter does not
constitute a continuing violation.
Here,
athletic
Defendants

Plaintiffs
events
fail

at
to

assert
Byrd

provide

Id.

that

Stadium
the

every
or

time

the

auxiliary

they

Comcast

aids

and

attend
Center,
services

necessary to ensure effective communication for the Plaintiffs.
Consequently, Plaintiffs assert that they are unable to hear any
of the aural information projected into the stadium bowl, arena,
and concourse areas every time they attend athletic events at
Byrd Stadium and the Comcast Center, and - unlike individuals
12

who are not deaf or hard of hearing – are denied the benefits of
participating

in

such

events.

Plaintiffs

assert

that

the

violation did not happen only once; according to Plaintiffs,
Defendants

regularly

fail

to

provide

communication during athletic events.

them

with

effective

For instance, Dr. Innes

cites an incident on October 12, 2013, when captions on his
handheld device were unavailable during a game.

(ECF No. 33 ¶

34).
The analysis in Mosier v. Kentucky, 675 F.Supp.2d 693, 697
(E.D.Ky.

2009)

instructive.

–

although

That

case

not

binding

involved

a

on

this

disability

court

–

is

discrimination

claim by a deaf attorney who argued that she was unable to
participate

fully

in

court

proceedings

without

appropriate

auxiliary aids or services, such as a sign language interpreter.
Defendant

in

that

case

argued

that

the

Court

Interpreting

Services Division of the Administrative Office of the Courts had
a

policy

that

attorneys.
argued

that

it

did

not

provide

interpreting

Mosier, 675 F.Supp.2d at 695.
plaintiff’s

claims

were

services

for

Defendants in Mosier

time-barred

because

her

claims accrued in 2004, when defendants implemented the court
interpreting

services

program

that

only parties, jurors and witnesses.
argument, reasoning:

13

provided

interpreters

for

The court rejected this

Defendants argue that Plaintiff’s claims
accrued in 2004 when the interpreter policy
was enacted.
Citing Frame v. City of
Arlington, 575 F.3d 432 (5th Cir. 2009), they
urge the Court to adopt a policy that the
claim accrues when the service, program or
activity is made available to the public,
such as when construction of a public
facility is complete. Frame, however, was a
facility accessibility claim, not a service
accessibility
claim.
There,
the
construction
of
the
sidewalk
was
the
government service at issue and the lack of
an interpreter is the barrier to Plaintiff’s
access to that service. Such service access
requirement,
unlike
facility
access
requirements, continue[s] to apply even
after a service, program or activity has
been made available to the public.
To find
otherwise would destroy the requirement that
governments
provide
persons
with
disabilities “meaningful access” to such
services. See Alexander v. Choate, 469 U.S.
287, 301 (1985).
Mosier, 675 F.Supp.2d at 698 (emphasis added).
applies here.
argue

that

The same logic

Much like defendants in Mosier, Defendants here

the

claim

accrued

when

Byrd

Stadium

was

last

renovated in 2007 and when Comcast Center was constructed in
2002.

But as in Mosier, the lack of effective communication –

and not the construction of the respective facility - is the
barrier

to

Plaintiffs’

participation

in

the

athletic

Mosier concluded:
Governments continue to discriminate against
persons with disabilities by providing court
proceedings
without
interpreters
or
auxiliary aids.
Therefore, so long as
Plaintiff is denied meaningful access to

14

events.

Defendants’ programs, the violation of the
ADA continues.
Id.

Similarly, the allegations in the second amended complaint

suggest

that

Defendants’

acts

–

which

Plaintiffs

believe

constitute violations of the ADA and Rehabilitation Act - are
recurring.
of

law

Accordingly, Defendants have not shown as a matter
that

Plaintiffs’

disability

discrimination

claims

concerning Byrd Stadium and the Comcast Center are time-barred.
B.

Claims against President Loh and the Board of Regents

Defendants argue that the ADA and Rehabilitation Act claims
against

President

Loh

and

dismissed as redundant.
official

capacity.

Rehabilitation

because

Maryland

Board

claims
it

directly,

of

Regents

should

be

President Loh has been sued in his

Defendants

Act

dismissed

the

is

which

contend

against

possible

that

the
Loh

President
to

Plaintiffs

sue
have

the

ADA

and

must

be

University

done.

“[A]

of

suit

against a state official in his or her official capacity is not
a suit against the official but rather is a suit against the
official’s office,” and “[a]s such, it is no different from a
suit against the State itself.”

Will v. Mich. Dep’t. of State

Police, 491 U.S. 58, 71 (1989) (citations omitted) (emphasis
added).

In

F.Supp.2d

386,

“[p]laintiff

Adams

v.

396

states

Montgomery

(D.Md.
a

valid

College

2011),
cause

15

the
of

(Rockville),
undersigned

action

under

834
held:

the

ADA

against the College.
against

There is thus no need to pursue a claim

Defendant[s]

capacities.”

Brown

and

Hayer

in

The same logic applies here.

their

official

Plaintiffs assert

that “President Loh is a necessary defendant because, as the
university’s chief executive officer, he has the power to carry
out any injunctive relief that the Court may order.”
38, at 37).

(ECF No.

Plaintiffs further argue that President Loh is not

redundant as a defendant for the additional reason that the
University of Maryland has raised the defense of immunity in its
answer to the second amended complaint; thus, it is proper to
name the relevant state official to obtain relief to the extent
the University of Maryland attempts to raise sovereign immunity.
(Id. at 38).
A lawsuit against President Loh in his official capacity is
in

essence

a

lawsuit

against

the

University

of

Maryland.

President Loh and the University of Maryland are one and the
same for purposes of this lawsuit.

Without the University of

Maryland as a party to the litigation, President Loh would not
be in a position to provide any sort of relief because he has
been named as a defendant in his official capacity.

See, e.g.,

Munoz v. Balt. Cnty., Md., Civil Action No. RDB-11-02693, 2012
WL 3038602, at *5 (D.Md. July 25, 2012) (dismissing plaintiff’s
ADA

and

defendant

Rehabilitation
in

his

Act

official

claims

against

capacity

because

16

each

individual

“[p]laintiff

has

filed claims against Baltimore County, [thus] his claims against
the

individual

official

supervisors

capacities

are

employed

by

redundant.”);

the

County

in

their

Harrison-Khatana

v.

Cannon, Civil Action No. DKC 11-3715, 2012 WL 5383314, at *2
(D.Md.

Oct.

31,

2012)

(“[b]ecause

Harrison-Kathana

is

also

pursuing relief against WMATA under . . . the ADA, any claims
against

Cannon

in

his

official

capacity

would

subject

to

dismissal as redundant.”); Bradley v. Balt. Police Dep’t, Civ.
No. JKB-11-1799, 2012 WL 4321738, at *2 (D.Md. Sept. 19, 2012)
(dismissing

claims

against

individual

defendants

because

“it

would be pointless to [sue them in their official capacities]
since a suit brought in that manner would still be, in effect, a
suit against the Baltimore Police Department, which is already a
defendant.”).

Accordingly, President Loh will be dismissed as a

defendant.
The claims against the Board of Regents, however, require a
different conclusion.

Defendants argue that the lawsuit against

the Board of Regents is redundant because, like the University
of Maryland, it is a state entity; thus, a suit against either
is a suit against the State.

(ECF No. 34-1, at 24).

Defendants

do not cite any case-law to support dismissal of the Board of
Regents

on

redundancy

grounds.

Alternatively,

Defendants

contend that the Board of Regents lacks the statutory duty or
authority

to

provide

Plaintiffs’
17

requested

relief.

Specifically,

Defendants

argue

that

the

second

amended

complaint:
does not allege any conduct by the Board of
Regents that caused the Plaintiffs’ alleged
injuries, does not identify any statutory
authority of the Board of Regents over
athletic events at the University, and does
not identify any duty of the Board of
Regents
to
provide
auxiliary
aids
and
services
at
athletic
events
at
the
University or on the University’s Athletic
Department website.
(ECF No. 34-1, at 18).

According to Md. Code Ann., Educ. § 12-

102, the University System of Maryland is an “instrumentality”
of Maryland and an “independent unit of State government.”

The

government of the University System of Maryland is vested in the
Board of Regents of the University System of Maryland.
12-102(b).

The

Board

of

Regents

“[i]s

responsible

Id. §
for

the

management of the University System of Maryland and has all the
powers,

rights,

responsibility.”

and

privileges

Id. § 12-104(c)(1).

that

go

with

that

Section 12-104(k)(1)(i)

states that the Board of Regents:
shall delegate to the president of each
constituent institution authority needed to
manage that institution, including authority
to make and implement policies promoting the
mission of that institution, including the
authority to establish policies appropriate
to the institution’s mission, size, location
and financial resources.
Defendants argue that the Board of Regents should be dismissed
from this lawsuit because the statute “plainly intends to remove
18

the Board of Regents from the day-to-day operations and handson, detailed management of the innumerable aspects involved in
running the many schools within the university system.”
No. 39, at 9).

(ECF

But as Plaintiffs point out, the Board of

Regents has ultimate control over the University of Maryland.
Defendants are correct that the Board of Regents can delegate
authority

to

the

presidents

of

the

various

universities

it

oversees, but, as an example of how the Board of Regents retains
ultimate control, “[a]ny delegation of authority may be modified
or rescinded by the Board of Regents at any time in whole or in
part.”

Md. Code Ann., Educ. § 12-104(k)(2).

Moreover, the

Board of Regents maintains responsibility to develop policies
and guidelines that “[p]rovide direction to the presidents of
the constituent institutions on compliance with applicable law
and policy,” which presumably includes disabilities laws.
12-104(k)(3)(i).

Id. §

Although each president shall “[r]egulate and

administer athletic and student activities,” this responsibility
remains [s]ubject to the authority and applicable regulations
and policies of the Board of Regents.”
Similarly,
each

Section

constituent

accountable

to

conduct

the

of

departments.”

12-109(d)(2)
institution

the

Board

for

institution
(emphasis

states
shall
the

and

added).
19

Id. § 12-109(e)(12).
that

the

“[b]e

discipline

supervision
These

president

responsible
and
of

of
and

successful

each

provisions

of

its

undercut

Defendants’

arguments

that

operations

of

University,

administration

the
of

its

“oversight

athletic

and

management

including
events

is

statutory authority of the Board of Regents.”
21).

of

regulation
not

the
and

within

the

(ECF No. 34-1, at

Although the Board of Regents delegated authority to the

president of the University of Maryland, it retains ultimate
control

over

the

University.

Moreover,

Section

12-104(b)(3)

states that the Board of Regents may “sue and be sued.”

Id. §

12-104(b)(3).
Indeed,

courts

in

this

district

have

rejected

similar

arguments to those Defendants proffer concerning dismissal of
the Board of Regents.

In Jean v. Bd. of Regents of Univ. Sys.

of Md., Civ. WDQ-13-0117, 2013 WL 3873948, at *2 (D.Md. July 24,
2013), a case involving alleged violations of the ADA and the
Rehabilitation Act, the Board of Regents also argued that it
lacked the power to take action and was not a proper defendant.
Judge Quarles stated that “[a]lthough the Board’s management of
[University

of

Maryland

Baltimore

County

(“UMBC”)]

has

been

delegated to Hrabowski [UMBC’s president] by statute, see Md.
Code Ann., Educ. § 12-104(k)(1), the statute is equally clear
that the Board retains ultimate responsibility for the entire
University

System.”

Id.

at

*2.

Judge

Quarles

denied

the

Board’s motion to dismiss, holding that “[c]ombined with the
Board’s capacity to ‘sue and be sued,’ [], these provisions
20

indicate that the Board is a proper defendant in this case.”4
See also Pavlovic v. Univ. of Md. Balt. Cnty., Civil Action No.
MJG-13-983, 2013 WL 4775530, at *4 (D.Md. Sept. 4, 2013) (“this
Court finds Judge Quarles’ decision persuasive and holds that
the [p]laintiffs are not statutorily barred from proceeding on
their

claims

against

the

Board.”).

Accordingly,

Plaintiffs’

claims against the Board of Regents will not be dismissed at
this time.
C.

Claims under the ADA and the Rehabilitation Act5

Defendants argue that Plaintiffs’ Rehabilitation Act and
ADA claims with respect to Byrd Stadium and the Comcast Center
4

Citing Stern v. Bd. of Regents, 380 Md. 691 (2004) and Bd.
of Trustees v. John K. Ruff, Inc., 278 Md. 580 (1976),
Defendants also argue that the “sue and be sued” language in
Section 12-104(b)(3) does not impose unqualified liability upon
a government agency; “[r]ather, such liability is limited to
suits regarding matters within the agency’s specific powers and
obligations.”
(ECF No. 34-1, at 21).
Judge Quarles rejected
this argument in Jean, 2013 WL 3873948, at *2 n.6. As he noted,
these cases concern sovereign immunity. Much like the Board in
Jean, the Board of Regents here has not claimed sovereign or
Eleventh Amendment immunity. Moreover, as Plaintiffs point out,
Congress has abrogated Maryland’s sovereign immunity for Title
II claims.
See Constantine v. Rectors and Visitors of George
Acceptance of
Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005).
federal funds under the Rehabilitation Act abrogates Eleventh
Amendment immunity. Id. at 498.
5

Claims under Title II of the ADA and the Rehabilitation
Act can be combined for analytical purposes because the analysis
is “substantially the same.”
Doe v. Univ. of Md. Med. Sys.
Corp., 50 F.3d 1261, 1265 n.9 (4th Cir. 1995); Rogers v. Dep’t of
Health & Environmental Control, 174 F.3d 431, 433-34 (4th Cir.
1999) (stating that courts may apply Rehabilitation Act
precedent in interpreting the ADA, and vice versa).
21

must be dismissed for failure to state a claim.6
ADA

states

shall,

by

that

“no

reason

qualified

of

such

individual

Title II of the

with

disability,

be

a

disability

excluded

from

participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination

by

any

such

entity.”

42

U.S.C.

§

12132.

“Discrimination” includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise
qualified

individual

12112(b)(5)(A);

see

with
also

a

disability.”

Paulone

v.

City

42
of

U.S.C.

Frederick,

§
787

F.Supp.2d 360, 372 (D.Md. 2011) (discussing the equivalence of
“reasonable

accommodations”

and

“reasonable

modifications”).

Similarly, Section 504 of the Rehabilitation Act provides that
“[n]o otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be excluded
from

participation

subjected

to

in,

or

be

discrimination

denied
under

the
any

receiving Federal financial assistance.”

benefits
program

of,

or

or

be

activity

29 U.S.C. § 794(a).

A

plaintiff seeking recovery for violation of either the ADA or
the

Rehabilitation

disability,

(2)

he

Act
is

must

allege

otherwise

6

that:

qualified

(1)
to

he

has

receive

a
the

Defendants do not argue that Plaintiffs’ Rehabilitation
Act and ADA claims should be dismissed for failure to state a
claim with respect to captioning on Defendants’ athletic
website.
22

benefits of a public service, program, or activity, and (3) he
was excluded from participation in or denied the benefits of
such service, program, or activity, or otherwise discriminated
against, on the basis of his disability.

Constantine v. Rectors

& Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.
2005).7
Defendants do not contest that Plaintiffs, who are deaf,
are disabled within the meaning of the first prong.
also

concede

benefits

of

that
a

Plaintiffs

public

are

service,

qualified

program

to

or

Defendants
receive

activity.

the
The

University of Maryland and the Board of Regents also do not
contest that they are recipients of federal funding for purposes
of the Rehabilitation Act.

Defendants maintain, however, that

Plaintiffs fail to allege sufficient facts to satisfy the third
prong:

“the

unembellished

language

of

their

complaint

establishes that the only accommodation they will accept, the
retrofitting by a public entity of a facility, simply is not
mandated by Title II.”

(ECF No. 34-1, at 10).

As stated, to

establish the third prong of a disability discrimination claim,
a plaintiff must show that he was excluded from participation
in, or denied the benefits of, a program or service offered by a
7

Under Title II, a plaintiff need only show discrimination
“by reason of” disability.
42 U.S.C. § 12132.
But, a
successful Rehabilitation Act claim requires a showing of
discrimination “solely by reason of” disability.
29 U.S.C. §
794(a) (emphasis added).
23

public entity, or subjected to discrimination by that entity.
See

Constantine,

411

F.3d

at

499.

The

Fourth

Circuit

has

recognized “three distinct grounds for relief: (1) intentional
discrimination or disparate treatment; (2) disparate impact; and
(3) failure to make reasonable accommodations.”

A Helping Hand,

LLC v. Balt. Cnty., Md., 515 F.3d 356, 362 (4th Cir. 2008).
Plaintiffs

invoke

the

third

ground.

The

second

amended

complaint states:
Because Plaintiffs are unable to hear any of
the aural information projected into the
stadium bowl, arena, and concourse areas, or
played on Defendants’ web site, Plaintiffs
do not have equal opportunity to enjoy,
benefit from, or participate in home games,
athletic events, or public web sites equal
to that of individuals without disabilities.
(ECF No. 33 ¶ 24).
Defendants

argue

that

they

have

offered

reasonable

accommodation by providing captioning that is supposed to be
accessible on hand-held devices, such as smart phones or tablet
devices.

(ECF

No.

33

¶

29).8

Defendants

assert

that

“Plaintiffs’ complaint explicitly rejects the provision or use
of

handheld

accommodation.

devices

as

‘auxiliary

aids’

as

a

reasonable

Instead, they demand architectural modifications

to the Jumbotrons and scoreboards.”
8

(ECF No. 34-1, at 11).

The second amended complaint states that “Defendants
claimed for the first time that they had begun providing
captioning at some point during the 2013-2014 football season at
Byrd Stadium.” (ECF No. 33 ¶ 29).
24

Defendants assert that the ADA Accessibility Guidelines do not
require

them

request.

to

provide

captioning

in

the

form

Plaintiffs

They state that “both with respect to structures built

prior to the adoption of the ADA and for those that have been
modified

thereafter,

facilities

provide

there

is

no

legal

‘line-of-sight’

captioning for the deaf.”

requirement

and

that

‘hands-free’

(ECF No. 34-1, at 14).

the
live

Defendants

contend that Plaintiffs seek to dictate a particular form of
accommodation, “one that can only be achieved through extensive
retrofitting of the University’s facilities to incorporate the
most recent technological developments.
the requirements of Title II.”
Plaintiffs

aver

that

This goes well beyond

(Id. at 15).

“[c]aptioning

can

be

displayed

on

Jumbotrons, LED ribbon boards, and scoreboards located through
the venues.”

(ECF No. 33 ¶ 20).

Defendants assert that the

Jumbotron, scoreboards and control room at Byrd Stadium and the
Comcast

Center

Consequently,

as

constitute
Plaintiffs

‘facilities’
point

out,

under

Defendants’

the

ADA.

arguments

largely center on program accessibility regulations promulgated
under the ADA to the exclusion of communication regulations,
which

Plaintiffs

contend

apply

9

here.9

With

regard

to

Congress directed the Department of Justice to promulgate
regulations implementing Title II of the ADA.
See 42 U.S.C. §
12134(a). The Department of Justice was also directed to issue
regulations governing Section 504 of the Rehabilitation Act “for
25

communication-related
public

entities

to

disabilities,
“take

the

appropriate

regulations
steps

to

require

ensure

that

communications with applicants, participants, and members of the
public with disabilities are as effective as communications with
others,” 28 C.F.R. § 35.160(a) (emphasis added), and to “furnish
appropriate

auxiliary

aids

and

services

where

necessary

to

afford an individual with a disability an equal opportunity to
participate in, and enjoy the benefits of, a service, program,
or activity conducted by a public entity.”

Id. § 36.160(b)(1).10

“Auxiliary aids and services” are defined by both statute and
regulation.

See 42 U.S.C. § 12103(1); 28 C.F.R. § 35.303.

regulation is more expansive.

The

Examples of auxiliary aids and

services include: “open and closed captioning, including realthe consistent and effective implementation of various laws
prohibiting discriminatory practices in Federal programs and
programs receiving Federal financial assistance.”
Executive
Order 12250, 45 Fed.Reg. 72995 (Nov. 2, 1980). The regulations
governing Title II of the ADA are found at 28 C.F.R. part 35,
and the regulations under the Rehabilitation Act for recipients
of federal funding are contained in 28 C.F.R. part 42, subpart
G.
10

Similarly,
the
regulations
interpreting
the
Rehabilitation Act require that recipients of federal funding
“shall insure that communications with their applicants,
employees and beneficiaries are effectively conveyed to those
having impaired vision and hearing.”
28 C.F.R. § 42.503(e).
Moreover, a “recipient that employs fifteen or more persons
shall
provide
appropriate
auxiliary
aids
to
qualified
handicapped persons with impaired sensory, manual, or speaking
skills
where
a
refusal
to
make
such
provisions
would
discriminatorily impair or exclude the participation of such
persons in a program or activities receiving Federal financial
assistance.” Id. § 42.503(f).
26

time

captioning,”

equipment

or

actions.”

the

“[a]cquisition

devices,”

28

C.F.R.

and
§

or

“[o]ther

35.104.

modification

similar

The

services

regulation

of
and

governing

effective communication acknowledges that:
The type of auxiliary aid or service
necessary to ensure effective communication
will vary in accordance with the method of
communication used by the individual; the
nature,
length,
and
complexity
of
the
communication involved; and the context in
which the communication is taking place.
28

C.F.R.

§

35.160(b)(2).

Notably,

the

regulation

further

instructs:
In determining what types of auxiliary aids
and services are necessary, a public entity
shall give primary consideration to the
requests of individuals with disabilities.
Id. (emphasis added).
Plaintiffs allege in the second amended complaint that the
form of auxiliary aid or service that Defendants have offered
for Byrd Stadium and the Comcast Center – captioning on handheld

devices

–

does

not

provide

effective

communication.

Specifically, Plaintiffs assert that many smart phone and tablet
devices cannot be read in bright sunlight, thus precluding deaf
patrons from being able to read captions if football games are
played on sunny days.

(ECF No. 33 ¶ 31).

Plaintiffs further

explain that deaf fans would be unable to speak to each other
using sign language while holding the device on which they would

27

read captions, and would be unable to hold a snack and a drink
while

reading

captions.

(Id.

¶

30).

The

accommodation

Defendants have offered would also require deaf patrons using
the

hand-held

devices

to

make

difficult

visual

adjustments

between observing live action at a distance and close vision for
reading captions on a small screen.
further

inform

likelihood

of

that

captions

experiencing

may

(Id. ¶ 36).

not

be

interrupted

timely
single,

Plaintiffs
due

to

given

the
the

“proximity of thousands of other fans using the internet on
their

smart

phones

basketball game.”

and/or

tablets

(Id. ¶ 33).

during

a

football

or

Indeed, Plaintiffs provide an

example of when Dr. Innes attended a game on October 12, 2013,
was unable to read captions on his device, and was told that the
website was not working and captions would be unavailable.

(Id.

¶ 34).
These

allegations

challenge

the

effectiveness

of

communication accommodations provided by Defendants with respect
to Byrd Stadium and the Comcast Center.

Defendants respond that

Plaintiffs’ request that captioning be displayed on Jumbotrons,
LED ribbon boards, or scoreboards requires retrofitting of a
facility

to

incorporate

the

(ECF No. 34-1, at 8 n.4).

latest

technological

innovation.

As Plaintiffs point out, however,

Title II contemplates that public entities may be required to
modify

their

facilities,

including
28

the

acquisition

or

modification
services.

of

equipment

or

devices

as

auxiliary

aids

and

(ECF No. 38, at 20-21); see 28 C.F.R. §§ 35.104 &

35.130(b)(7).

Indeed,

applying

the

program

accessibility

regulations that Defendants cite – instead of the regulations
governing

effective

dismissal

of

communication

Plaintiffs’

–

also

second

counsels

amended

against

complaint.

Specifically, 28 C.F.R. § 35.150(b)(1) states that “[a] public
entity is not required to make structural changes in existing
facilities

where

other

compliance

with

this

methods

are

section.”

effective

(emphasis

in

achieving

added).

Here,

Plaintiffs cite several examples, discussed supra, to show that
the “other methods” of captioning Defendants have offered do not
yield

effective

communication.

(See

ECF

No.

38,

at

24).

Plaintiffs assert that unlike hearing fans, when they attend
athletic events at Byrd Stadium and the Comcast Center, they
“are unable to hear any of the aural information projected into
the stadium bowl, arena, and concourse areas.”
24).

Thus,

opportunity

Plaintiffs
to

enjoy,

assert
benefit

that

they

from,

or

“do

(ECF No. 33 ¶
not

have

participate

in

equal
home

games, athletic events, or public web sites equal to that of the
individuals without disabilities.”

(Id.); see, e.g., Feldman v.

Pro Football, Inc., 419 F.App’x 381, 391 (4th Cir. Mar. 25, 2011)
(“For plaintiffs to enjoy a game on a level as equal as possible
with hearing spectators, they must be able to access, in both
29

the

stadium

information

bowl

and

broadcast

concourse
over

the

areas,
public

the

game-related

address

system.”).

Although Defendants are correct that auxiliary aids and services
do not necessarily need to take a particular form in order to
constitute

effective

communication,

at

this

stage,

it

is

inappropriate to resolve factual disputes between the parties
regarding whether Defendants’ accommodation provides effective
communication.11

11

Although Title II of the ADA applies here, Defendants
find persuasive DOJ’s decision to decline to impose new
requirements under Title III regarding whether captioning should
be required in stadiums. Defendants refer to final rules issued
by DOJ enforcing the accessibility standards of Title III of the
ADA. See Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 28 C.F.R. § 36.
With respect to the issue of captioning of “all public address
announcements,” rather than simply “safety and emergency
information,” DOJ elected to postpone rulemaking on this complex
issue.
Id.; see also Feldman, 419 F.App’x at 392 (discussing
DOJ regulations). DOJ concluded “that further consideration and
review would be prudent before it issues specific regulatory
requirements.” Defendants interpret this decision to mean that
captioning need not be provided in stadiums.
In Feldman, 419 F.App’x at 392-93, the Fourth Circuit
considered – but rejected - a similar argument proffered by
defendants.
The Fourth Circuit noted that DOJ’s “action
demonstrates the DOJ’s alertness to problems like those
experienced by plaintiffs. It does not preclude the conclusion
that the ADA requires defendants to provide auxiliary access to
more than just safety and emergency information.”
The same
logic applies here.
The fact that the regulations are silent
regarding the form of relief Plaintiffs request here does not,
ipso facto, suggest that such accommodations are beyond the
scope of accommodations envisioned by Title II or the
Rehabilitation Act.
30

Indeed, although Defendants do not use these words, their
argument

challenging

the

accommodations

Plaintiffs

request

amounts to an “undue burden” defense, which is inappropriate to
consider at the motion to dismiss stage.

28 C.F.R. § 35.164

states that a public entity need not take any action “that it
can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial
and administrative burdens.”

“[A] public entity has the burden

of proving that compliance with this subpart would result in
such

alteration

or

burdens.”

Id.

Based

on

the

foregoing,

Defendants’ motion to dismiss Plaintiffs’ Rehabilitation Act and
Title

II

claims

concerning

effective

communication

at

Byrd

Stadium and the Comcast Center will be denied.
D.

Rehabilitation Act

Defendants also argue that the Section 504 claims must be
dismissed because the second amended complaint does not allege
that Defendants discriminated against Plaintiffs solely because
of their disability.

(ECF No. 34-1, at 17).

Plaintiffs allege

that Defendants discriminated against them by failing to provide
effective communication for deaf patrons at Byrd Stadium, the
Comcast
websites.

Center,

and

on

University

of

Maryland’s

athletic

Plaintiffs assert that Defendants’ failure to display

captions on the Jumbotrons and scoreboards and ribbon boards at
Byrd

Stadium,

the

Comcast

Center,
31

and

the

athletic

websites

results in a lack of reasonable accommodation.

As Plaintiffs

point out, the only plausible inference from the allegations in
the second amended complaint is that they were discriminated
against solely on the basis of their disability.

The analysis

in Mosier, 675 F.Supp.2d at 698, is again instructive.

In that

case, defendants also argued that plaintiff could not meet the
“solely” requirement under the Rehabilitation Act.

The case,

discussed supra, involved a deaf attorney’s lawsuit against the
Commonwealth of Kentucky and its administrative office of the
courts for refusing to provide her sign language interpreters to
enable

her

to

proceedings.

have

effective

communication

during

courtroom

Defendants in Mosier argued that the policy on

appointment of interpreters only applies to parties, jurors, and
witnesses

–

not

discrimination

lawyers.

did

not

Thus,

result

defendants

from

the

maintained

handicap

alone,

that
but

rather from one’s status as an attorney (and not a party, juror,
or witness).

The court rejected this argument, reasoning:

[p]laintiff’s
claim
is
based
on
being
treated differently than hearing attorneys
with regard to access to court services, so
[d]efendants’ argument is without merit. It
is a question for the trier of fact as to
whether [d]efendants discriminated against
[p]laintiff based solely on her disability.
Id. at 699.
placed

on

Here, too, Plaintiffs argues that they are not

equal

footing

with

hearing

spectators

of

athletic

events at Byrd Stadium and the Comcast Center, and fans who view
32

videos of athletic events on the website.
the

second

amended

complaint

are

The allegations in

sufficient

to

infer

discrimination solely on the basis of Plaintiffs’ disabilities.
E.

Compensatory Damages

Defendants next argue that Plaintiffs’ request for money
damages should be dismissed because they fail to allege that
Defendants had notice regarding their need for accommodations at
University

athletic

athletic websites.

events

and

on

University

(ECF No. 34-1, at 26).

of

Maryland’s

Plaintiffs assert in

the opposition, however, that they “abandon any claim for money
damages for the University’s failure to caption its website.”
(ECF No. 38, at 29 n.9).

Thus, the only issue remaining with

respect to Plaintiffs’ claim for money damages is whether they
have sufficiently alleged that Defendants were on notice of the
need to accommodate Plaintiffs with respect to captioning at
Byrd Stadium and the Comcast Center.12
In general, Plaintiffs are entitled to a “full panoply” of
legal remedies under Title II of the ADA or Section 504 of the
Rehabilitation Act.

See Pandazides v. Va. Bd. of Educ., 13 F.3d

12

Defendants argue in their motion to dismiss that
Plaintiffs fail to allege that they had notice of Dr. Innes’s
need for accommodations with respect to the University of
Maryland’s websites. (ECF No. 34-1, at 30). Because Plaintiffs
abandon their claim for compensatory damages as to Defendants’
alleged failure to provide accommodation in connection with the
athletic websites, the notice arguments concerning Dr. Innes are
now moot.
33

823, 830 (4th Cir. 1994); see also Torcasio v. Murray, 57 F.3d
1340, 1343 (4th Cir. 1995) (recognizing that “remedies available
for ADA violations are those available for Rehabilitation Act
violations”).

The

Fourth

compensatory

damages

Circuit

require

has

a

held,

showing

discrimination or disparate treatment.

however,
of

that

intentional

See Pandazides, 13 F.3d

at 829-830 & n.9; Paulone v. City of Frederick, 787 F.Supp.2d
360, 373-74 (D.Md. 2011).
specifically

addressed

Although the Fourth Circuit has not
whether

compensatory

damages

are

available for failure to provide reasonable accommodation under
the disability statutes, “the majority of circuits that have
resolved the question have held that damages may be awarded if a
public

entity

‘intentionally

or

with

deliberate

indifference

fails to provide meaningful access or reasonable accommodation
to disabled persons.’”

Paulone, 787 F.Supp.2d at 373 (quoting

Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008), and
listing circuit court cases).

The undersigned held in Proctor

v. Prince George’s Hosp. Ctr., 32 F.Supp.2d 820, 829 n.6 (D.Md.
1998),

that

“the

level

of

proof

necessary

for

finding

intentional discrimination under [the] Rehabilitation Act means
a

deliberate

indifference

to

a

strong

violation of federal rights would result.”
787

F.Supp.2d

standard

as

at

373-75

applied

in

(adopting
Proctor).
34

likelihood

that

a

See also Paulone,

deliberate
Defendants

indifference
intentionally

violate

the

ADA

and

the

Rehabilitation

Act

by

demonstrating

deliberate indifference when they have “notice of the potential
risk of their decision, and clearly [refuse] the accommodation
knowingly.”
N.Y.

State

1997)).

Proctor, 32 F.Supp.2d at 829 (quoting Bartlett v.
Bd.

of

Law

Exam’rs,

970

F.Supp.

1094

(S.D.N.Y.

A plaintiff need not show “discriminatory animus” to

recover damages under Title II of the ADA or Section 504 of the
Rehabilitation
Pandazides,

13

Act.
F.3d

Paulone,
at

830

787

n.9).

F.Supp.2d
Rather,

at
as

373

(citing

explained

in

Proctor, 32 F.Supp.2d at 828, compensatory damages are available
for

failure

‘knowingly,

to

accommodate

voluntarily,

a

and

plaintiff

if

defendants

deliberately,’”

even

“acted
if

the

violations resulted from mere “‘thoughtfulness and indifference’
rather than because of any intent to deny Plaintiff’s rights.”
Defendants argue that two of the three Plaintiffs - Mr.
Markel and Mr. Rinas - fail to allege that Defendants had notice
of their need for accommodations at University of Maryland’s
athletic events held at Byrd Stadium and the Comcast Center;
thus,

Defendants

contend

intentional discrimination.

that

Plaintiffs

cannot

(ECF No. 34-1, at 26).13

plead

The second

amended complaint states that Dr. Innes contacted the University
of Maryland’s “Terrapin Club” on multiple occasions - even prior
13

Defendants do not dispute that they had notice of Dr.
Innes’s request for captioning at Byrd Stadium and the Comcast
Center.
35

to 2007 - to request that Defendants provide captioning for
football games and basketball games.

(ECF No. 33 ¶ 25).

The

second amended complaint also avers that on February 8, 2013,
before

Plaintiffs

instituted

this

action,

Plaintiffs

sent

a

letter to Defendants “requesting captions for announcements made
on

public

address

systems,

on

the

scoreboards,

LED

ribbon

boards, and/or Jumbotron at Byrd Stadium and Comcast Center and
for those captions to be visible from all seats in each venue.”
(Id. ¶ 28).
and

the

Plaintiffs assert that the requests from Dr. Innes

February

8,

2013

letter

put

Defendants

regarding the need for a reasonable accommodation.
Plaintiffs

argue

that

this

lawsuit

–

on

notice

Furthermore,

initially

filed

in

September 2013 – put Defendants on notice of the need to provide
captioning at Byrd Stadium and the Comcast Center.
at 30).

(ECF No. 38,

Plaintiffs maintain that Defendants continue to refuse

to provide the requested accommodation.
Plaintiffs’ request for compensatory damages will not be
dismissed

at

this

time.

First,

the

contact

from

Dr.

Innes

requesting captioning – even prior to 2007 - was sufficient to
put

Defendants

on

notice

that

other

deaf

patrons

would

experience similar difficulties in attending athletic events at
Byrd Stadium and the Comcast Center.

See Proctor, 32 F.Supp.2d

at 829 (“It cannot be said that PGHC, which had been subject to
a past complaint to the OCR, did not have notice of potential
36

liability

that

appropriate

arises

for

when

determining

hearing-impaired

the

patients.”);

accommodations
Jarboe

v.

Md.

Dep’t of Public Safety and Correctional Servs., Civil Action No.
ELH-12-572,

2013

WL

1010357,

at

*15

(D.Md.

Mar.

13,

2013)

(“although the extent of plaintiffs’ disabilities and requested
accommodations may vary to some degree, all of the plaintiffs
are

profoundly

alleged

deaf

failures

to

and

accommodate

aspects of prison life.
filing

rule

is

complain

about
their

substantially
disability

in

similar
common

In my view, application of the single-

appropriate

in

such

circumstances.”).14

As

Plaintiffs point out, “[b]ecause Innes’s requests for captioning
resulted in no remedy, the Defendants cannot credibly claim that
if

Plaintiffs

Markel

or

Rinas

had

requested

captioning,

the

Defendants would have complied and captioned all football and

14

The “single-filing rule,” better known as “vicarious
exhaustion,” was originally developed in the context of the
administrative exhaustion requirement under Title VII of the
Civil Rights Act of 1964 and related employment discrimination
statutes.
As Judge Hollander explained in Jarboe, 2013 WL
1010357, at *11, the “single-filing rule” permits “employees who
allege that they have all been subjected to the same
discriminatory employment practice to rely, in a class action or
other multi-plaintiff suit, on a single employee’s filing of a
complaint with the EEOC challenging the disputed practice to
satisfy the requirement of administrative exhaustion.” Although
the administrative exhaustion requirement is not applicable
here, the rationale behind the “single-filing rule” is still
quite obviously instructive, and counsels against dismissal of
Mr. Markel’s and Mr. Rinas’s claims for compensatory damages on
notice grounds.
37

basketball

games

Jumbotrons.”

on

the

scoreboards,

ribbon

boards,

and

(ECF No. 38, at 32).

Moreover,

“in

cases

where

a

public

accommodation

is

on

notice that its failure to provide an accommodation may violate
the

Rehabilitation

lesser

Act

accommodation,

Proctor,

32

and

intentionally

compensatory

F.Supp.2d

at

opts

damages

829.

As

to

are

provide

a

available.”

Plaintiffs

point

out,

Defendants were on notice – at least as of February 8, 2013 –
that Plaintiffs requested captions on scoreboards, LED ribbon
boards, and/or Jumbotron at Byrd Stadium and the Comcast Center.
(ECF

No.

33

¶

28).

Instead,

during

the

2013-2014

football

season at Byrd Stadium, Defendants offered captions on hand-held
devices.

The

parties

captioning

on

hand-held

accommodation.”

dispute

whether

devices

the

provision

constitutes

a

of

“lesser

Drawing all inferences in Plaintiffs’ favor,

however, they have met the showing required in order to pursue
compensatory damages.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

all

Defendants

President

Loh

will
will

be

granted

in

be

dismissed

part
as

a

and
party

denied

in

defendant.

separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
38

part.
A