Bell-Kachelski v. Michigan Protection & Advocacy Service, Inc. et al
OPINION AND ORDER granting 21 Michigan Protection & Advocacy Service, Inc's Motion for Summary Judgment; granting 22 Michigan Rehabilitation Services Motion for Summary Judgment and DISMISSING WITHOUT PREJUDICE Counts II-V of the complaint. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 16-14157
MICHIGAN PROTECTION & ADVOCACY
MICHIGAN REHABILITATION SERVICES
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT ON COUNT I AND DISMISSING WITHOUT PREJUDICE COUNTS II-V
This is an Americans with Disabilities Act (ADA) case in which Plaintiff Linda BellKachelski’s alleges discriminatory treatment by two organizations designed to provide
services to and advocate for disabled individuals. Plaintiff claims Defendant Michigan
Rehabilitation Service (“MRS”) and Defendant Michigan Protection & Advocacy Service
(“MPAS”) denied her services and benefits, and failed to provide reasonable
accommodations, because of her cognitive disabilities. Plaintiff’s complaint also
includes four counts alleging that Defendants violated various state laws.
Both Defendants filed Motions for Summary Judgment. (Dkt. # 21 & # 22.)
Plaintiff has responded (Dkt. # 24 & # 25) and Defendants have replied. (Dkt. # 26 & #
27.) The court has duly considered all of the parties’ briefing and conducted oral
argument on November 1, 2017. See E.D. Mich. LR 7.1(f)(2).
Plaintiff’s federal claim is unsustainable and will be dismissed. Plaintiff’s
remaining claims are also dismissed, though without prejudice to Plaintiff’s right to
restate those claims in state court.
Plaintiff alleges that she suffers from a permanent cognitive disability that
prevents her from working all day within large groups. Plaintiff learned sign language as
a child from her mother. She has provided sign language services as a home health
care provider since 2006 and also conducted her own business from 2005-2010 as an
independent contractor providing sign language interpreting services.
The Division on Deaf and Hard of Hearing (“the Division”) within the Michigan
Department of Civil Rights administers the certification process for interpreters for deaf
and hard of hearing individuals. Plaintiff worked as an interpreter pursuant to the
Division’s quality assurance certificate program, but in 2007, Michigan began to phase
out the quality assurance system in an effort to strengthen its certification requirements
In 2011, the Director of the Division, Shery Emery, notified Plaintiff that her
quality assurance certificate was going to expire and she would need to obtain
certification from the Board of Evaluation of Interpreters (“BEI”). In order to obtain said
certification, Plaintiff would be required to pass the Test of English Proficiency (“TEP”).
Although the factual record in this case is extensive, covering a period of nearly five
years, and involving numerous individuals and entities, the great majority of the facts
are agreed upon by the parties and have been stated as such unless otherwise
The TEP is the only educational requirement for BEI certification. Because Plaintiff had
failed the TEP on two prior occasions, Emery expressed concern that ineffective
communication by Plaintiff could jeopardize the legal rights and health of deaf persons
receiving her services.
In 2012, Plaintiff submitted a letter to the Division from a psychiatrist stating that
she had performance anxiety and requesting a testing accommodation from the Division
for the TEP. The Division denied her request because it found she had not sufficiently
documented a qualifying disability.
In November 2012, Plaintiff contacted Defendant Michigan Protection and
Advocacy Service, Inc. (“MPAS”) and requested assistance regarding the Division’s
denial of her accommodation request. MPAS is a private, non-profit organization that
exists to advocate for and protect the rights of individuals with disabilities. MPAS
provides attorneys to represent individuals with meritorious claims that are within MPAS’
program priorities. Separately, MPAS also has a Client Assistance Program (“CAP”)
that is staffed by non-attorney advocates who assist persons in receiving rehabilitation
services, services for the blind, and independent living services.
On November 26, 2012, Plaintiff signed a MPAS retainer agreement to have
MPAS investigate the Division’s denial of her testing accommodation request. MPAS
attorney Nicole Shannon was assigned to the file. After conducting research into
whether test anxiety could be considered a disability under the ADA, Shannon
concluded that she did not have the support she needed to represent Plaintiff and
closed her file.
On April 19, 2013, Plaintiff sought assistance from Defendant Michigan
Rehabilitative Services (“MRS”), a division of the Michigan Department of Health and
Human Services designed to help individuals with disabilities obtain and retain suitable
employment. In order to obtain MRS’ services, an individual must enter into an
Individualized Plan for Employment (“IPE”) with an assigned counselor. An IPE is a
signed agreement between the client and MRS identifying the employment goal and the
services required to achieve said goal.
Plaintiff indicated to MRS that she wished to finish her bachelor’s degree in order
to become an interpreter. Plaintiff’s assigned counselor, Wendy Hilliker, referred her to
a psychologist, Harold Sommerschield, for a vocational assessment. Dr.
Sommerschield determined that Plaintiff’s anxiety symptoms in combination with her
below average intellectual functioning warranted test-taking accommodations both for
her college exams and the TEP.
On May 3, 2013, Plaintiff inquired to Hilliker whether MRS would fund the college
courses she recently began. Hilliker explained that MRS has a process that requires
certain documentation before Plaintiff is eligible for that type of assistance. At the time,
Plaintiff was enrolled in English 112: Critical Writing & Reading at The University of
Michigan- Flint, a class which she ultimately failed. Plaintiff re-took English 112 in the
spring semester of 2013 and again failed. It is unclear whether she received testing
accommodations for that course.
In June 2013, Hilliker stressed to Plaintiff the importance of developing her IPE.
On July 30, 2013, Plaintiff again contacted MPAS this time about her dealings
with MRS. Plaintiff complained that MRS had not sent Dr. Sommerschield’s findings to
the Division and thus Plaintiff had not received a testing accommodation for the TEP. In
accordance with MPAS’s standard procedure, Plaintiff signed a retention letter, which
stated that MPAS would “investigate [the] status of accommodation documents
requested from (MRS). . . [but] ha[d] not agreed to represent [Plaintiff] in this or any
other matter.” (Dkt. # 21-9.) MPAS then assigned one of their non-attorney CAP
advocates, Lisa Knapp, to Plaintiff’s file. Knapp contacted Hilliker, Plaintiff’s counselor at
MRS, regarding the situation. Hilliker explained that Plaintiff needed to contact Dr.
Sommerfield directly to have his letter sent to the Division. Knapp documented the
above information in a letter to Plaintiff on Sept. 3, 2013 and closed Plaintiff’s MPAS file.
On August 1, 2013, Dr. Sommerschield faxed a letter containing his findings to
the Division. As a result, Plaintiff was provided 50% more testing time on August 2,
2013 when she took the TEP. She nonetheless failed the exam, this for the third time.
On August 15, 2013, Hilliker met with Plaintiff to discuss her failures at the
University and on the TEP. Because Plaintiff’s most recent attempt to pass English 112
had been during a shortened spring semester, Hilliker believed her failure did not
accurately represent her abilities. Consequently, MRS agreed to provide funding for
Plaintiff to take English 112 again as an assessment. Hilliker told Plaintiff that if she
passed the English course, “college will be discussed but no guarantee that MRS will
continue to pay for classes.” (Dkt. # 25, Pg. ID 792.) Hilliker advised Plaintiff that if she
did not pass, MRS would still help her obtain employment, but not as an interpreter. It
appears that both Plaintiff and Hillilker incorrectly believed that a bachelor’s degree was
required to obtain BEI certification. It is unclear who led whom to that conclusion. On
Sept. 6, 2013, MRS approved $1,677.22 to assist Plaintiff with her tuition on an
On October 1, 2013, Plaintiff went to MRS to see if Hilliker was available to meet.
Plaintiff alleges that she overheard an unknown female Caucasian MRS receptionist
state, “the nigger is here at five to five, trying to make trouble.” Plaintiff also alleges that
the MRS receptionist stated “[y]ou people are always here five minutes before five . . .
MRS claims that Plaintiff arrived at MRS shortly before five and that the
receptionist told Plaintiff that Hilliker was not there because thought that Hilliker had left
for the day. Hilliker testified that she was using the front copier at the time and
overheard the receptionist arguing with someone at the front desk. The receptionist
came to Hilliker and allegedly told her that Plaintiff wanted to speak with her. Hillliker
claims that Plaintiff then yelled “I heard that,” stated that the front desk person was rude,
and left. Hilliker tried calling Plaintiff the next morning, but did not reach her.
On October 4, 2013, Plaintiff met with Hilliker and the MRS site manager Don
Dees. Hilliker explained that she meant no disrespect to Plaintiff by not coming to the
front desk. She was busy packing up files that she needed and did not expect Plaintiff to
drop by unannounced. Plaintiff requested a new counselor and Dees refused to assign
one. Hilliker tried to schedule a weekly phone call with Plaintiff, but she declined and
stated that she did not want to talk with a MRS counselor until the semester ended.
On October 10, 2013, Plaintiff contacted MPAS CAP’s office requesting help for
a third time. Plaintiff told MPAS that a MRS receptionist referred to her using a racial
slur, that her MRS counselor Hilliker did nothing about it, and that MRS site manager
Dees refused to transfer her to a new counselor. MPAS CAP advocate Lisa Knapp was
again assigned to Plaintiff’s file. Knapp contacted Hilliker who relayed MRS’ version of
the events. Knapp explained MRS position to Plaintiff and closed her file.
During this time, Plaintiff remained enrolled at the University of Michigan-Flint. In
fall 2013, Plaintiff completed these University of Michigan courses: Introduction to
Technology and American Ethnic Literature, Hip Hop, and The Black Family. In the
winter 2014 semester Plaintiff took these courses: Dance Topics: Yoga, College
Reading & Learning Strategy, Jazz I, Basic Stress Management/Relaxation, Black Arts
Movement, and College Writing Workshop.
In early 2014, Hilliker expressed concern regarding Plaintiff’s curriculum. Plaintiff
needed 33 credits at the 300 level to complete her degree, but had only taken one such
course. Hilliker informed Plaintiff that MRS would not fund course electives, except
those necessary to complete a specific degree program. Most importantly, Hilliker
advised Plaintiff that she needed a signed IPE before MRS could provide any further
financial support for her college degree.
Hilliker kept a record of what she viewed as problems with Plaintiff providing
requested information and documentation for the development of her IPE. Hilliker
explained that Plaintiff’s IPE could not be completed because she often arrived late to
meetings and only stayed 10-15 minutes before abruptly leaving. Plaintiff claims this
behavior is symptomatic of her disability.
On February 7, 2014, Plaintiff asked for a written statement as to why MRS
would no longer provide funding for her college tuition. Hilliker sent Plaintiff a letter on
February 13, 2014 outlining deficiencies in Plaintiff’s file and setting a deadline of
February 28, 2014 for a response in which Hilliker requested that Plaintiff identify the
next steps she would like to take in her vocational rehabilitation program.
Sometime in February 2014, Plaintiff contacted MPAS again this time requesting
help with MRS’ denial of her college tuition funding. Lisa Knapp was assigned to
Plaintiff’s file again. Knapp spoke again with Hilliker who relayed MRS policy against
providing further college funding absent a signed IPE.
Through Knapp’s own research, she discovered that a bachelor’s degree is not
required to obtain BEI certification. Knapp relayed her belief to Plaintiff that MRS was
not obligated to pay for Plaintiff’s tuition in light of this fact. Knapp also informed Plaintiff
that MRS’ had a policy against retroactive payment of tuition for courses already taken.
Plaintiff reiterated her desire to change MRS counselors.
On February 21, 2014, Plaintiff contacted Hilliker and requested that MRS pay
the fee for her to re-take the TEP examination. Hilliker did not believe that Plaintiff would
succeed in the job goal of interpreter and tried to discuss other career options, in which
Plaintiff had no interest.
On March 26, 2014, Plaintiff met with Donald Dees (the MRS site manager),
Hilliker (her assigned MRS counselor), Knapp (her MPAS CAP advocate), Brian
Sabourin (Knapp’s supervisor at MPAS), and Charlie Rose (a new MPAS CAP
employee). Knapp memorialized the following agreements reached at the meeting in a
letter (“the April 3 letter”): that MRS would fund Plaintiff’s enrollment in English 112 in
fall 2014 as an assessment of Plaintiff’s ability to proceed with college coursework,
MRS would develop an IPE with the goal employment of interpreter and continue to
fund Plaintiff’s college tuition if Plaintiff passed English 112, MRS would pay the fee for
Plaintiff to re-take the TEP examination, and MRS would assign Plaintiff a new
counselor. MRS alleges that it additionally told Plaintiff it would not fund any spring or
On April 29, 2014, Plaintiff met with her new MRS counselor, Vanessa Neilley, to
seek financial assistance from MRS for spring and summer coursework. On June 16,
2014, Neilley advised Plaintiff that MRS would not fund English 112 as a summer
course because Plaintiff had previously not performed well in shortened spring/summer
courses. Neilley also allegedly made a notation in Plaintiff’s file questioning why MRS
was paying for her college coursework at all since it was not necessary for her to
become an interpreter.
Plaintiff asked MRS for a letter explaining wny MRS would not fund her
bachelor’s degree in Africana Studies. Neilley provided a letter explained MRS policy
and the goal of finding work for Plaintiff.
On June 17, 2014, Plaintiff contacted MPAS for a fifth time, now requesting help
regarding MRS’ refusal to fund her summer coursework. Knapp no longer worked for
MPAS, and MPAS CAP advocate Charlie Rose was assigned to Plaintiff’s file. Rose
contacted Neilley who explained MRS’ position regarding summer courses as well as
his concern regarding MRS providing funding for Plaintiff’s degree at all. Rose
concluded that because Plaintiff did not have a signed IPE with MRS, there was not
anything MPAS could do to help her. However, Rose mistakenly reported in Plaintiff’s
file that Plaintiff did have a signed IPE with MRS, but it did not include funding for
English 112 as a summer course. Rose closed Plaintiff’s MPAS file. Nonetheless,
Plaintiff enrolled in English 112 in the summer of 2014 and failed it for the third time.
On June 19, 2014, Plaintiff indicated that she was seeking legal counsel and
wanted all communications with MRS in writing. Neilley attempted to meet with Plaintiff
three times to develop her IPE and Plaintiff refused. Plaintiff requested a new counselor.
On August 20, 2014, Plaintiff called Neilley inquiring if MRS would pay for her
classes beginning in September. Neilley explained that the notice was very late and she
was concerned that the classes were not necessary for Plaintiff to reach her goal of
becoming an interpreter.
Neilley allegedly met with MRS site manager Don Dees in August 2014 to
discuss Plaintiff’s file. The pair concluded that MRS should not fund Plaintiff’s English
112 class in the fall considering that she had already taken the course that summer and
it was not necessary to obtain her interpreter certification.
On August 26, 2014, Neilley advised Plaintiff that MRS would not financially
support her efforts to obtain her bachelor’s degree; however, MRS would be willing to
fund her efforts to pass the TEP and obtain her BEI certification. Neilley emphasized the
need for Plaintiff to sign an IPE. Neilley requested that a manager be present for all
future meetings with Plaintiff because she was deemed “very aggressive and very
Neilley allegedly sent Plaintiff a letter scheduling a meeting for Sept. 4, 2014,
which Plaintiff alleges she did not receive. Plaintiff did not attend the Sept. 4, 2014
meeting and as a result Neilley closed her file on Sept. 8, 2014. Neilley advised Plaintiff
of the procedure to appeal the closure of her file, which Plaintiff did. Following Plaintiff’s
appeal, Dees directed Neilley to reopen her file on October 24, 2014.
On November 14, 2014, Plaintiff met with Neilley to discuss steps moving
forward. Plaintiff stated that she “was not going to play this game” because Neilley knew
“what she wanted from MRS” and that it was clear to her that MRS was “not going to
give her what she wanted” and MRS was “denying her MRS services.” (See Dkt. # 22,
Pg. ID 509; Dkt. # 25, Pg. ID 804-805.) Plaintiff declared the meeting over and walked
out. Plaintiff called Neilley a week later to apologize for her behavior.
As a result of Plaintiff’s meeting with Neilley and Dees on November 21, 2014,
MRS agreed to fund Plaintiff’s English 112 course in the winter 2015 semester since it
had previously indicated that it would do so and because the course should improve
Plaintiff’s English proficiency in preparation for the TEP examination. MRS also agreed
to assist her with the TEP examination fees if she passed English 112. Dees indicated
that MRS could not fund any courses without a signed IPE unless the course was for
assessment purposes only.
On January 12, 2015, Plaintiff came to the MRS office to collect authorizations
for the English 112 tuition and to sign an IPE. However, Plaintiff refused to sign the IPE
because it contained the statement, “I understand that MRS is not supporting my
academic pursuit of a Bachelor’s Degree.” Neilley did not release the funding
authorizations due to Plaintiff’s refusal to sign the IPE.
Neilley reconsidered and left a voice message for Plaintiff indicated that MRS
would remove the cited language from the IPE. Neilley alleges that Plaintiff returned her
call and continued to refuse to sign the IPE unless specific language was inserted into
the IPE stating that MRS was supporting her efforts to obtain her degree. Plaintiff
denies making such demands. MRS advised Plaintiff that it could not proceed to help
her without a signed IPE. Plaintiff never signed an IPE.
Plaintiff did not enroll in English 112 in the winter 2015 semester, but instead
took African Cultures, Applied Science Senior Seminar, and Topics: Hip Hop II and
Modern Dance I. Plaintiff called Neilley requesting MRS pay $3,000 in fees that she said
she incurred due to registering for and then dropping numerous classes. MRS alleges
that Plaintiff did not provide proper proof or documentation of the fees.
On February 13, 2015, Plaintiff contacted MPAS yet again requesting help with
MRS. MPAS CAP advocate Brian Sabourin was assigned to Plaintiff’s file. Based on the
notes from Plaintiff’s prior CAP advocate, Charlie Rose, Sabourin mistakenly believed
that Plaintiff had a signed IPE with MRS that did not include support for English 112.
Sabourin advised Plaintiff to continue working with MRS to obtain services to aid her in
acquiring her BEI certification, rather than her bachelor’s degree, and proceeded to
close her MPAS file.
On March 23, 2015, Plaintiff contacted Neilley at MRS and inquired about the
alleged signed IPE which Sabourin from MPAS had incorrectly told Plaintiff existed.
Neilley told Plaintiff that she did not have a signed IPE on file with MRS, but that she
could still sign the draft IPE previously discussed in January 2015.
On April 7, 2015, Neilley wrote Plaintiff indicating that MRS would help her obtain
her interpreter’s license and scheduled a meeting for April 17, 2015. Plaintiff alleges that
on April 11, 2015, she notified Neilley in a letter that she would not meet with MRS
because MRS had violated the Americans with Disabilities Act in its treatment of her
case. MRS denies receiving such letter.
Plaintiff did not attend the April 17, 2015 meeting. Neilley rescheduled it for May
1, 2015. Plaintiff did not attend that meeting either and Neilley closed her file. Neilley
advised Plaintiff of her ability to appeal the decision within the Department of Health and
On October 14, 2016, Plaintiff filed the instant action against MPAS and MRS
alleging: (1) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132
& 12182; (2) violation of the Michigan Persons with Disabilities Civil Rights Act
(“PWDCRA”), Mich. Comp. Laws § 37.1201 et seq., (3) violation of the Elliot Larsen
Civil Rights Act (“ELCRA”), Mich. Comp. laws § 37.2101 et seq., against Defendant
MRS only, (4) malpractice against Defendant MPAS only, and (5) civil conspiracy.
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “In deciding a motion for summary judgment, the court
must view the evidence in the light most favorable to the non-moving party, drawing all
reasonable inferences in that party’s favor.” Sagan v. United States, 342 F. 3d 493, 497
(6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine
dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“[T]hat burden may be discharged by showing . . . that there is an absence of evidence
to support the nonmoving party’s case.” Bennett v. City of Eastpointe, 410 F. 3d 810,
817 (6th Cir. 2005) (internal quotation marks omitted).
The burden then shifts to the nonmovant, who must put forth enough evidence to
show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F. 3d 906, 909
(6th Cir. 2004) (citation omitted). Summary judgment is not appropriate when “the
evidence presents a sufficient disagreement to require submission to a jury.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). In evaluating a summary judgment
motion, “the judge’s function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial . . .
credibility judgments and weighing of the evidence are prohibited.” Moran v. Al Basit
LLC, 788 F. 3d 201, 204 (6th Cir. 2015) (internal quotation marks and citations omitted)
A. Title II of the ADA
Title II of the ADA declares that,
“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 activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132.
A public entity is
(A) any State or local government;
(B) any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter
authority (as defined in section 24102(4) of Title 49) 42 U.S.C. § 12131(1).
The regulations interpreting Title II state,
A public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7)(i).
“Services, programs, or activities” under Title II of the ADA encompass virtually
everything a public entity does. See Anderson v. City of Blue Ash, 798 F. 3d 338, 357
(2015) (citing Tucker v. Tennessee, 539 F. 3d 526, 532 (2008); see also 28 C.F.R. § Pt.
35, App. B. “To establish a prima facie case of intentional discrimination under Title II of
the ADA, a plaintiff must show that: (1) she has a disability; (2) she is otherwise
qualified; and (3) she was being excluded from participation in, denied the benefits of, or
subjected to discrimination under the program because of her disability.” Id. For
purposes of the ADA, a disability is “a physical or mental impairment that substantially
limits one or more of the major life activities of [the] individual” and must include “a
record of such an impairment; or being regarded as having such an impairment.” See
42 U.S.C. § 12102(2)(A)-(C). To be considered qualified, the plaintiff must be an
individual with a disability
who, with or without reasonable modifications to rules, policies, or
practices, the removal of architecture, communication, or transportation
barriers or the provision of auxiliary aids and services, meets the essential
eligibility requirements for receipt of services or the participation in
programs or activities provided by a public entity. 42 U.S.C. § 12131(2).
To show that she was subject to discrimination because of her disability, a
plaintiff must “present evidence that ‘animus against the protected group was a
significant factor in the position taken by the municipal decision-makers themselves or
by those to whom the decision-makers were knowingly responsive.’” Turner v. City of
Englewood, 195 F. App'x 346, 353 (6th Cir. 2006) (citing Reg'l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002)) (emphasis
removed). The discrimination need not be solely because of the plaintiff’s disability,
Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012), but the
defendant must have intentionally discriminated against the plaintiff. See Anderson,
798 F.3d at 357-358 (affirming the district court’s finding no discriminatory intent where
the city’s actions were motivated by citizen complaints) accord Dillery v. City of
Sandusky, 398 F.3d 562, 568 (6th Cir. 2005).
1. Defendant MRS
Plaintiff alleges that Defendant MRS discriminated against her in violation of Title
II of the ADA. Specifically Plaintiff complains that MRS did not honor the promises
articulated in the April 3, 2014 letter from MPAS and MRS’ failure is attributable to
animus toward her cognitive disabilities. The alleged promises included (1) “MRS will
pay for the fee for you to re-take your Michigan BEI exam;” (2) “MRS will pay for you to
take English 112 at U of M Flint as an assessment of your ability to proceed with college
coursework;” (3) “If you pass English 112, MRS will develop an IPE with the goal of
Interpreter and continue to pay for your full time enrollment at U of M Flint to complete
her [sic] Bachelors degree;” and (4) “MRS will assign you to a new counselor.” (Dkt. #
Plaintiff’s Title II ADA claim against Defendant MRS fails for two reasons.
First, Plaintiff has not shown that she was “otherwise qualified” to receive the
services that MRS denied her. Defendant correctly points out that a letter from MPAS,
signed only by a MPAS representative does not, without more, bind MRS and cannot
serve as proof that Plaintiff was qualified or entitled to receive the MRS services
described therein. Defendant MRS explains that “Plaintiff admits the critical and
dispositive fact that she never developed an IPE or signed one. Without that predicate
step, MRS could never get beyond the assessment level for Plaintiff.” (Dkt. #22, Pg. ID
Plaintiff does not dispute that to be entitled to MRS’ financial aid for college
courses, an individual must have a signed IPE. See Dkt. # 25, Pg. ID 805 (“Plaintiff
admits that Dees explained that without a completed IPE, MRS is prohibited from
paying for any services (other than services necessary to complete an assessment).”).
She does not dispute that she knew she needed a signed IPE before she could obtain
funding for her English 112 course. Id. (“Plaintiff admits that she received a letter from
Neilley advis[ing] her that ‘no authorizations will be generated until we have a signed
IPE in place.’”). Plaintiff was informed numerous times of the importance of having a
developed IPE.2 Plaintiff admits that she never signed an IPE. (Id. at 805, 807.)
In sum, Plaintiff failed to comply with MRS’ standard policy that requires any
individual it serves to develop and sign an IPE before it authorizes any non-assessment
financial assistance. Therefore, Plaintiff was not otherwise qualified to receive further
services from MRS. See Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247, 258 (6th
Cir. 2000) (holding that a disabled individual who failed to comply with the defendant’s
non-discriminatory policy that was a prerequisite for anyone wishing to obtain the
services/benefits Plaintiff sought could not maintain an ADA claim against defendant
because to hold otherwise would convert the ADA “into a mandatory preference
While “Plaintiff denies that MRS advised Plaintiff the importance of developing and
signing an IPE” (Dkt. # 25, Pg. ID 807), Plaintiff admits facts in thirteen other instances
in her brief that demonstrate she fully understood the importance of developing an IPE.
See Dkt. #25 (Plaintiff attended numerous independent vocational assessments “in
order to develop her IPE” (Pg. ID 790); Plaintiff met with MRS for “the purpose of ‘plan
development action’” (Pg. ID 791); Plaintiff admits that MRS initially gave her tuition
assistance without an IPE because it was for an assessment (Pg. ID 792); Plaintiff
admits she received a message from MRS requesting a meeting to develop a plan (Pg.
ID 797); Plaintiff admits her millage reimbursement request was denied “until there was
an approved IPE in place” (Pg. ID 798); Plaintiff admits MRS believed Plaintiff was
having trouble remembering “the need to develop her IPE” (Pg. ID 798); Plaintiff admits
her counselor informed MRS management that “Plaintiff’s IPE was overdue” (Pg. ID
798); Plaintiff admits that MRS attempted to schedule an appointment with Plaintiff “in
order to develop an IPE” (Pg. ID 802); Plaintiff admits that MRS told her the focus
should be on “completing her IPE” (Pg. ID 803); Plaintiff admits that MRS explained it
could not pay for any services “without a completed IPE” and that “no authorizations will
be generated until we have a signed IPE in place.” (Pg. ID 805); Plaintiff admits MRS
confirmed to Plaintiff that “MRS would not proceed without a signed IPE” (Pg. ID 806);
Plaintiff admits that MRS advised her “that failure to have a valid IPE in place” would
result in closure of her case (Pg. ID 806); and Plaintiff admits that MRS advised her “it
Second, even if the court assumed that Plaintiff was denied services for which
she was otherwise qualified to receive, Plaintiff has failed to show that any services
MRS denied her were due to animus toward her cognitive disability. Plaintiff argues that
the very fact that MRS denied her services is evidence that MRS denied her services
due to animus toward her disability. At the hearing on Defendant’s motion, Plaintiff’s
counsel reaffirmed this argument. When questioned by the court regarding whether any
specific facts evince discrimination, counsel pointed to MRS’ alleged denial of services
and argued that the “totality of the circumstances” show a discriminatory intent.
Plaintiff’s argument is circular. The ADA requires a party to prove she was denied
services and that the denial was because of individual’s disability. The denial of services
itself, without more, does not fulfill both of those requirements. At the hearing, Plaintiff’s
counsel asserted that MRS refused to send Dr. Sommerschield’s letter to the Division
and that this refusal is a denial of services that cannot be explained by anything other
than a discriminatory intent. The court is unpersuaded by this line of argument.
Plaintiff mischaracterizes the record; MRS’ actions regarding Dr. Sommerfield’s
assessment do not constitute a denial of services, let alone a denial that can only be
explained by discriminatory intent. Plaintiff does not dispute that MRS gave her “Dr.
Sommerschield’s contact information . . . and recommended [P]laintiff contact him
directly to obtain a copy of his assessment.” (Dkt. # 21-1, Pg. ID 135, ¶ 14; Dkt. # 24,
Pg. ID 710, ¶ 14.) MRS’ business file record, which was documented
contemporaneously with Plaintiff’s case, states that MRS explained it “could not provide
could not proceed without an IPE.” (Pg. ID 807).
the Psychological/Vocational Assessment. [Plaintiff] was informed that she would need
to contact Harold Sommerschield Psychologist to get a letter about accommodations to
send to [the Division] because [MRS] did not feel it was necessary or [in the] best
interest of [Plaintiff] to send [the] entire assessment. [MRS] explained to [Plaintiff] that
most likely the psychologist will need her to come in and sign a release to send the
letter to [the Division], if she need[s] a letter could be sent but it would be better to have
the Psychologist send the information.” (Dkt. #22-6, Pg. ID 613-614.) Far short of
refusing to help Plaintiff, MRS staff explained why obtaining a letter from Dr.
Sommerschield’s office directly would be more beneficial to Plaintiff and provided
Plaintiff with the information she needed to obtain Dr. Sommerschield’s assessment and
letter.3 Ultimately, Plaintiff received the full benefit to be gained by MRS’ services
because the Division received Dr. Sommershield’s letter4 and Plaintiff was given a
testing accommodation as a result. Given these facts, MRS’ actions do not constitute a
refusal to provide Plaintiff services. Moreover, these undisputed facts do not support
Although not necessary to support the court’s conclusion, MPAS’ documentation of its
investigation of the matter on Plaintiff’s behalf provides further illumination. According to
MPAS records, MRS “explained to [Plaintiff] why she should request this [letter] from the
psychologist who completed her assessment. . . [MRS] recommended to [Plaintiff] that
she request a test accommodation needs letter from the psychologist instead of
providing the State with a copy of her assessment because the assessment document
had information beyond what the State needs that may not be in the best interest of
[Plaintiff] to provide.” (Dkt. #21-23, Pg. ID 370.) “[B]ecause of the psych [sic] information
. . . [MRS] could not release the document to [Plaintiff], but [Plaintiff] could request a
copy from the psychologist.” (Id.) MRS “provided [Plaintiff] with contact information for
the psychologist to request a copy of her assessment or a statement indicating client
needed a test accommodation.” (Id.)
It is worth noting that Dr. Sommerschield assessed Plaintiff in the first instance due to
counsel’s assertion that MRS denied Plaintiff services and the denial can only be
explained by a discriminatory intent. Plaintiff has not alleged facts regarding MRS’
treatment of Dr. Sommerschield’s assessment and letter that give rise to an inference of
discriminatory intent based on Plaintiff’s disability. See Anderson v. City of Blue Ash,
798 F.3d 338, 357 (6th Cir. 2015) (“Plaintiff must present evidence that animus against
the protected group was a significant factor in the position taken by the [Defendant].”)
(quoting Turner, 195 Fed. Appx. at 353).
Moreover, Defendant MRS in fact provided many services to Plaintiff over the
course of two years, including referral for a vocational assessment, career counseling,
and funding for assessment college courses. Plaintiff herself provides a nondiscriminatory reason for those services MRS’ denied. She states that “the closing of
her file was done after Plaintiff sought to have Defendant [MRS] live up to their
agreement as of April 3, 2013.” (Dkt. # 25, Pg. ID 818.) MRS provides nondiscriminatory reasons for not “living up” to the conditions in the April 3rd letter. MRS
explained that it could not provide Plaintiff funding on a non-assessment basis without a
signed IPE. MRS also explained that its policies do not allow it to fund services that are
not necessary to achieve an individual’s identified career goal and that MRS’ position
changed when it discovered that a college degree is not necessary for Plaintiff to obtain
her interpreter’s license and achieve her identified career goal. Plaintiff advances no
evidence of discriminatory motive to rebut these non-discriminatory rationales.
For all of the above reasons, Plaintiff has failed to raise a genuine issue of
material fact as to whether Defendant MRS denied her services “by reason of” her
alleged cognitive disability and thus, her Title II ADA claim against Defendant MRS fails.
See 42 U.S.C. § 12132.
2. Defendant MPAS
Plaintiff has failed to raise a genuine issue of material fact indicating that
Defendant MPAS denied her services and benefits “by reason of” her alleged disability
in violation of Title II of the ADA.5 See 42 U.S.C. § 12132. Plaintiff alleges that the
“sequence of events” show a “continuous pattern of animus” against Plaintiff by MPAS.
(Dkt. # 24, Pg. ID 725.) She identifies four facts as a evincing a discriminatory pattern of
denial of service by MPAS. First, her response brief directs the court to an instance
when she was allegedly referred to as “that nigger.” Id. Not only was this statement
allegedly made by a MRS representative not an MPAS representative, it is understood
to be a racial slur. At the hearing on Defendants’ Motions for Summary Judgment,
Plaintiff’s counsel agreed that this incident, if it happened, has no probabtive bearing on
Plaintiff’s claim of disability discrimination under the ADA.
Second, Plaintiff directs the court to the constant closing and re-opening of her
MPAS file. However, Plaintiff misunderstands MPAS’ internal process; her MPAS file
At the outset, Defendant MPAS argues that it is not a public entity or otherwise an
“instrumentality of the state” 42 U.S.C. § 12131(1), and therefore, is not subject to Title
II of the ADA. The court is reluctant to conclude that MPAS is not public entity given that
it receives 92% of its funding from federal appropriations and grants; however, the court
need not decide the merits of this argument as even if MPAS was a public entity, the
court finds Plaintiff’s claim fails on other grounds.
was never closed and subsequently reopened.6 Rather, as explained by MPAS counsel
at the motion hearing, each time Plaintiff contacted MPAS with a new problem, a file
was opened, assigned, investigated, addressed, and eventually closed. There is no
dispute or problem evident in this procedure.
Third, Plaintiff cites the mistake MPAS counselor Rose made in the notes in
Plaintiff’s fifth file and subsequent MPAS counselor Sabourin’s reliance on said notes as
evidence of discrimination. Rose had incorrectly noted that Plaintiff had a signed IPE
with MRS that did not include support for English 112. Plaintiff fails to show how this
action was anything more than a mistake on Rose’s part. Plaintiff provides only one
conclusory allegation that Defendant MPAS discriminated against her when it “arbitrarily
closed their file under the impression that Plaintiff had a signed IPE.” (Dkt. # 24, Pg. ID
725.) Plaintiff incongruously claims MPAS closed her last file “arbitrarily”—i.e., without
reason—while explaining in the same sentence the reason MPAS closed her last file:
due to a misunderstanding of her IPE status with MRS.
The court refers to Plaintiff’s “last file” because Plaintiff had a total of six files with
MPAS in each of which MPAS sought to investigate Plaintiff’s problem and assist
Plaintiff when possible. Plaintiff claims that she did not see “any sort of resolution” prior
to her last file, but the undisputed facts show that claim to be untrue. (Dkt. #24, Pg. ID
725.) Upon closure of Plaintiff’s second file, Plaintiff was successful in obtaining Dr.
Sommerschield’s letter and in receiving a testing accommodation for the TEP from the
Only Plaintiff’s MRS file was closed and then subsequently reopened at the direction
Division. During the course of Plaintiff’s fourth file, MPAS representatives organized a
meeting with Plaintiff and MRS wherein MRS agreed to fund English 112 once Plaintiff
developed an IPE. Given these facts, MPAS’ mistaken belief that Plaintiff had a signed
IPE with MRS does not demonstrate animus toward her cognitive disability.
Fourth, Plaintiff faults MPAS for not ensuring that the terms of the April 3, 2014
letter were reduced to a written IPE by MRS and for failing to enforce the terms of the
letter. Plaintiff disagrees with MPAS’ conclusion that it had “no leg to stand on” to argue
for enforcement of the terms of the letter. (Dkt. # 24, Pg. ID 714.) Plaintiff argues that
MPAS “made unreasonable assertions and took unreasonable actions in determining
whether or not Plaintiff had recourse against MRS.” (Id. at 723.) Plaintiff’s complaint is
more akin to a legal malpractice or negligence than to an ADA claim; nonetheless, the
undisputed evidence shows that MPAS’ evaluation of Plaintiff’s position was
reasonable. Indeed, Plaintiff’s argument is that MPAS failed to thoroughly argue on her
behalf because it did not advocate for MRS to violate its own written policies: “Policies
of institutions are often broken on a case-by-case basis depending on the
circumstances and promises made by that institution” (Id. at 726-727.) According to
Plaintiff, MPAS should have attempted to enforce the terms of the letter “regardless of
the written policies of MRS.” Id. Plaintiff’s anger toward MPAS for not advancing a
frivolous position on her behalf provides no support for her ADA claim.
In sum, none of the four facts cited by Plaintiff provide evidence that Defendant
MPAS discriminated against Plaintiff due to animus toward her cognitive disability.
of MRS Manager Dees after Plaintiff appealed the closing.
B. Title III of the ADA
Title III of the ADA declares,
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation. 42 U.S.C.
Title III goes on to define discrimination as including in relevant part:
(ii) a failure to make reasonable modifications in policies, practices,
or procedures, when such modifications are necessary to afford
such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations;
(iii) a failure to take such steps as may be necessary to ensure that
no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals
because of the absence of auxiliary aids and services, unless the
entity can demonstrate that taking such steps would fundamentally
alter the nature of the good, service, facility, privilege, advantage,
or accommodation being offered or would result in an undue
burden; 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
Title III of the ADA is limited to injunctive relief and does not provide a
private party a money damages remedy. See Smith v. Wal-Mart Stores, Inc., 167
F.3d 286, 294 (6th Cir. 1999); See also Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400, 402 (1968) (holding that The Civil Rights Act of 1964 provides only
injunctive remedies) and 42 U.S.C. § 12188 (stating that the remedies for a
violation of Title III of the ADA are those contained in the Civil Rights Act of
1964). Injunctive relief is appropriate when a party shows “(1) that it has suffered
an irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent
injunction.” See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
In Defendants’ Motions for Summary Judgment, they argue that Plaintiff
has not requested any injunctive relief and therefore summary judgment on her
Title III claim is appropriate. Plaintiff responds requesting leave to amend her
complaint to add injunctive relief.7 She alleges that there is a “real or immediate
threat that [she] will be wronged again.” (Dkt. # 24, Pg. ID 723.) However,
Plaintiff admits she has already received her bachelor’s degree and her
interpreter’s certification and does not suggest that she will be seeking either
MRS or MPAS services in the future. Further, Plaintiff has not explained the
injunctive relief she would seek. Plaintiff does not identify any modifications to
MPAS or MRS policy that are necessary to prevent discrimination against
persons with cognitive disabilities, nor does she suggest any reasonable
accommodations necessary to allow individuals with cognitive disabilities to
benefit from MRS or MPAS’ services. The court is skeptical that Plaintiff could
identify any proper injunctive relief; however, as discussed below, even assuming
Plaintiff did not file a motion requesting leave to amend her complaint as is required.
(Fed. R. Civ. P. 15(a)(2); Fed. R. Civ. P. 7(b)(1).)
Plaintiff could so identify said relief, her amendment to her complaint would be
futile because her Title III ADA claim fails on other grounds.
1. Defendant MRS8
Plaintiff vaguely asserts that MRS failed to provide her reasonable
accommodations in light of her alleged disability.9 She alleges that “MRS
constantly held meetings in large groups where Plaintiff’s symptoms were most
vulnerable” (Dkt. # 25, Pg. ID 813) and “never took into consideration her
disability when forcing Plaintiff to come into stressful meetings in large group
settings.” (Id. at 818.) At the hearing on Defendants’ Motions for Summary
Judgment, counsel for MRS emphasized that despite Plaintiff’s allegations, she
has only identified one meeting where more than two individuals besides herself
were present in the two years that she sought services from MRS. Even then,
Plaintiff does not contend that she requested any type of accommodation from
MRS nor does she suggest any accommodations that MRS could have made to
assist her. See MX Grp., Inc. v. City of Covington, 293 F.3d 326, 344 (6th Cir.
2002) (holding that while an individual must generally request a reasonable
Given that all parties agree MRS is a public entity for purposed of the ADA, it is
questionable whether Title III applies to MRS. See The Americans with Disabilities Act:
Title II Technical Assistance Manual, at § II- 1.3000 (“Public entities are not subject to
title III of the ADA, which covers only private entities. Conversely, private entities are not
subject to title II.”). However, since Plaintiff’s argument is based on an alleged failure to
make reasonable accommodations and is therefore relevant to her Title II claim as well
(28 C.F.R. § 35.130(b)(7)(i)), the court will proceed to review the merits of Plaintiff’s
The parties dispute whether Plaintiff has a qualifying disability under the ADA. For
purposes of resolving the present motions, the court assumes, without deciding, that
accommodation, he need not do so when such request would be “useless” or
when the applicable policy is discriminatory on its face).
Moreover, Plaintiff does not explain how such unknown modifications were
“necessary to afford” her or other individuals with cognitive disabilities the
opportunity to realize the full benefit of MRS’ services. See 42 U.S.C. §
12182(b)(2)(A)(ii). Indeed, Plaintiff admits that despite these allegedly trying
circumstances, she was able to understand the draft IPE presented to her and
determine, in her opinion, that it “did not accurately reflect what Defendant had
represented.” (Id.) Additionally, Plaintiff has not explained how MRS’ failure to
make modifications resulted in her exclusion, denial, segregation, or otherwise
different treatment from other individuals. See 42 U.S.C. § 12182(b)(2)(A)(iii). In
contrast, Plaintiff was treated exactly how a nondisabled individual in her position
would have been treated—in accordance with MRS established policy. See
generally Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1015 (6th Cir. 1997)
(“[T]he ADA prohibits discrimination between the disabled and the non-disabled;
specifically, the ADA mandates that the owners, lessors, and operators of public
accommodations provide equal access to the disabled and non-disabled.). She
was given abundant resources over the course of two years to develop an IPE
including three different counselors and assistance from the MRS site manager.
In light of these undisputed facts, the court concludes that Plaintiff has failed to
Plaintiff’s alleged disability qualifies.
show a reasonable accommodation claim under Title III of the ADA against
2. Defendant MPAS
Plaintiff provides a single argument based on an intentional discrimination
theory in support of her Title II and Title III claims against Defendant MPAS. (See
Dkt. # 24, Pg. ID 724.) Title III prohibits a place of public accommodation from
discriminating against an individual “on the basis of [her] disability”. 42 U.S.C. §
12182(a). Putting aside whether MPAS discriminated against Plaintiff at all, for
the reasons discussed supra Section III (A)(2), Plaintiff has failed to raise a
genuine issue of material fact as to whether any alleged discriminatory action by
MPAS was based on Plaintiff’s alleged cognitive disability.
C. Plaintiffs’ state law claims
Having dismissed Plaintiff’s only federal claim, the court declines to
exercise jurisdiction over Plaintiff’s remaining state law claims and dismisses
them without prejudice. See 28 U.S.C. § 1367(c)(3); see also Gaff v. Fed.
Deposit Ins. Corp., 814 F. 2d 311, 319 (6th Cir.), on reh'g in part, 828 F. 2d 1145
(6th Cir. 1987) (“It is generally recognized that where, as in this case, federal
issues are dismissed before trial, district courts should decline to exercise
pendent jurisdiction over state law claims.”).
Plaintiff has failed to raise a genuine issue of material fact regarding whether
either Defendant violated Title II of the ADA. She has not identified any facts tending to
show that MRS or MPAS denied her services or subjected her to discrimination by
reason of her alleged disability. Plaintiff has further failed to raise a genuine issue of
material fact regarding whether either Defendant violated Title III of the ADA. She has
not provided any argument that it was necessary for MRS to make modifications to its
standard procedures to afford Plaintiff the full and equal benefit of said services nor has
she shown that MRS’ failure to make modifications resulted in her being treated
differently than non-disabled individuals. Plaintiff has not identified any facts or evidence
to suggest that Defendant MPAS discriminated against her on the basis of her alleged
IT IS ORDERED that Defendants’ Motions for Summary Judgment (Dkt. # 21 &
22) are GRANTED as to Count I of Plaintiff’s complaint.
IT IS FURTHER ORDERED that Counts II-V of Plaintiff’s complaint are
DISMISSED WITHOUT PREJUDICE.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 20, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 20, 2017, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?