Abdull v. Lovaas Instituate for Early Intervention Midwest

Filing 60

MEMORANDUM OPINION AND ORDER granting 33 Defendant's Motion for Summary Judgment; denying as moot 52 Plaintiff's Motion to Strike Pleading (Written Opinion). Signed by Judge Ann D. Montgomery on 12/02/2014. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Idil Abdull,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 13-2152 ADM/JJK

Lovaas Institute for Early
Intervention Midwest,
Defendant.
______________________________________________________________________________
Michael A. Fondungallah, Esq., Fondungallah & Kigham, LLC, St. Paul, MN, on behalf of
Plaintiff.
John M. Mulligan, Esq., Mulligan & Bjornnes, PLLP, Minneapolis, MN, on behalf of Defendant.
_____________________________________________________________________________
I. INTRODUCTION
On October 14, 2014, the undersigned United States District Judge heard oral argument
on Defendant Lovaas Institute for the Early Intervention Midwest’s (“Lovaas”) Motion for
Summary Judgment [Docket No. 33] and on Plaintiff’s Motion to Strike the Affidavits of Dr.
Eric Larsson and John Mulligan [Docket No. 52] submitted in support of Defendant’s Reply
Memorandum [Docket No. 47]. Plaintiff Idil Abdull (“Abdull”) alleges Lovaas discriminated
against her and her son on the basis of race and national origin.
For the reasons set forth below, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion to Strike the Affidavits of Dr. Eric Larsson and John Mulligan is denied
as moot.

II. BACKGROUND
Abdull is a Somali-American whose son, A.A., was diagnosed with an autistic disorder.
Abdull Aff. [Docket No. 42] ¶ 1. A.A. received treatment for his autism through Lovaas for 21
months, from May 2008 to February 2010. Larsson Aff. [Docket No. 36] ¶¶ 24, 57.
Abdull alleges that Lovaas discriminated against both her and her son on the basis of
their race and national origin. Abdull claims Lovaas prematurely discharged A.A. from the
program after only six months, despite its policy that a child has two consecutive six-month
periods to make sufficient progress to remain in the program. Abdull contends Lovaas refused to
treat A.A. because he was older than six years of age even though Caucasian children older than
six were in the program. Abdull also alleges discrete acts of discrimination including that (1)
Lovaas failed to teach the same material to A.A. that it taught to Caucasian children; (2) Lovaas
reassigned the staff working with A.A. more frequently than it did for Caucasian children; (3)
Lovaas intentionally reduced the number of hours of therapy provided to A.A. during the
summer of 2009; and (4) Lovaas subjected Abdull to special rules that were not applied to
Caucasian parents.
A. The Lovaas Treatment Program
Lovaas is a Minnesota corporation that provides behavior therapy to young children with
autism spectrum disorders using a method called Intensive Early Intervention Behavior Therapy
(“IEIBT”). Def.’s Mem. Supp. Summ. J. [Docket No. 35] 1. The goal of IEIBT is to modify
autistic behaviors so that the child can function independently and be mainstreamed into the
general school population. Id. The younger a child starts IEIBT, the more likely the program
can reduce autistic symptoms. Pl.’s Opp’n to Def.’s Mot. Summ. J. [Docket No. 41] 4.

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IEIBT is a particularly time and labor intensive method of treatment for autism. Def.’s
Mem. Supp. Summ. J. 2. A team of Lovaas professionals – including behavior therapists, senior
behavior therapists, a clinical supervisor, and a psychologist – work together to provide
appropriate, individualized treatment to each child based on the child’s particular needs. Larsson
Aff. ¶¶ 8, 12. Behavior therapists provide up to 40 hours of therapy each week to the child in the
child’s home. Id. ¶ 12. In addition, a clinical supervisor spends five to eight hours per week
evaluating the child and training the parents to reinforce appropriate behaviors. Id.
Because of the extensive time and labor associated with IEIBT, the cost of Lovaas’
services is over $100,000 per year per child. Def.’s Mem. Supp. Summ. J. 2. The cost of
services for many children in the Lovaas program, including A.A., can be covered through
Medical Assistance, Minnesota’s Medicaid program. Larsson Aff. Ex. 5 [Docket No. 37]. Due
to the expense, the Minnesota Department of Human Services requires a licensed psychologist to
certify periodically that the services provided are “medically necessary.” Larsson Aff. ¶ 11.
To determine whether IEIBT is “medically necessary” for the child, Lovaas conducts a
formal evaluation every six months to assess the child’s responsiveness to treatment. Id. ¶¶ 11,
14, 20. As part of this process, Lovaas documents the amount of progress the child has made as
a result of IEIBT to determine its effectiveness and prognosis for success in the future. Id. ¶ 11.
The child must make substantial developmental gains on testing assessments to warrant
continuation of IEIBT over other available autistic treatment services. Id. Ex. 8. Because
Lovaas re-evaluates the child every six months, Lovaas only agrees to provide one six-month
term of treatment at a time. Id. ¶ 11.

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B. Lovaas Policies Regarding Recommendations of Continued IEIBT
Lovaas requires parents with a child in the program to sign a comprehensive Informed
Consent for Direct Treatment Services for Intensive Early Intervention Behavior Therapy
(“Informed Consent”) before beginning services and before each subsequent six-month term of
treatment. Id. ¶¶ 13, 15. Both the clinical supervisor and the psychologist spend several hours
reviewing the Informed Consent with the parent every six months to make sure the parent
understands its implications. Id. ¶ 15. The Informed Consent explains Lovaas’ policies
regarding the six-month review:
A progress review will occur after the first six months to determine whether the
intensive treatment model is appropriate for the child. This determination will be
based upon an objective measurement of the child’s rate of progress. If the
treatment is considered appropriate, the program will continue, with a review
every six months, until the Institute and the parents agree not to initiate another
six-month service agreement. If the result of a six-month review is that either the
parents or the Institute conclude that the treatment is no longer appropriate, a
transition plan will be developed and implemented for a smooth transition into
more suitable services . . .
If a child fails to make sufficient progress in mastering benchmark objectives in
two consecutive six-month periods, then a transitional plan will be developed and
implemented during the subsequent six-month period review.
Id. Ex. 7 ¶¶ 15, 16.
The Lovaas Institute Policy and Procedures Manual (“Policy and Procedures Manual”)
addresses the criteria that define “progress” for the purpose of recommending continued IEIBT.
Id. Ex. 8 at 17. To continue IEIBT after the first six-month progress review, the child must have
passed the Early Learning Measure. Id. To continue IEIBT after subsequent six-month progress
reviews, the child must pass 80% of skill acquisition benchmarks. Id. If the child fails to make
sufficient progress in two consecutive six-month periods, the child’s therapy will transition to a

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focus on functional goals aimed toward improving the child’s independence and quality of life.
Id.
The Policy and Procedures Manual also contains a section addressing how the age of the
child influences the duration of treatment. It states:
In no case is the child’s age taken into account as the primary factor in making the
decision to continue treatment. While it may be that the child has stopped making
the therapeutic process that would justify [Lovaas’s] services, as the child did
grow older; it is the lack of progress, or the change in the parent’s goals, that
causes the termination, rather than the child’s age alone. In many cases, [Lovaas]
has continued to serve older children; out of [Lovaa’s] commitment to the child,
whenever the child could benefit. However, many older children no longer make
sufficient progress to justify the extreme cost of an intensive therapy program,
when typical special programs, which can be just as effective, already exist in the
child’s community.
Id.
C. Lovaas’ Provision of Services to A.A.
1. A.A.’s First Seven Months in the Program
A.A. was diagnosed with autism in 2007. Larsson Aff. Ex. 1-2. A.A. applied to Lovaas
and began receiving IEIBT in May 2008. Larsson Aff. ¶ 24. At the time, he was five years and
nine months old and nonverbal. Id. In the initial assessment, Lovaas did not project the best
prognosis, i.e. recovery from autism, for A.A. Id. Abdull signed the Informed Consent before
Lovaas began treating A.A. Id. ¶ 16.
Amy Novotny was A.A.’s clinical supervisor. Id. ¶¶ 25, 69. Novotny worked with A.A.
for three months, until she left Lovaas for another organization. Id. Victoria Crow temporarily
served as A.A.’s interim clinical supervisor for a few weeks before Karin Morris was assigned as
A.A.’s permanent clinical supervisor. Id. ¶ 70. Abdull asked Crow to remain as A.A.’s
supervisor, but she was reassigned to another family. Abdull Aff. ¶ 12. Crow allegedly told
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Abdull that she generally does not work with older children such as A.A., yet she was reassigned
to work with a family who had older children. Id.
During scheduled therapy hours, Abdull frequently complained to the behavior therapists
and instructed them not to comply with A.A.’s recommended treatment program. Larsson Aff.
¶¶ 28-29. Lovaas does not authorize behavior therapists to address parent complaints but
requires them to refer the complaints to their supervisor. Id. ¶ 34. In response to the frequency
of Abdull’s complaints, Lovaas implemented a daily parent communication system, instead of its
normal weekly system, so that the proper Lovaas staff member could address Abdull’s
disagreements. Id. ¶¶ 34-37.
IEIBT requires a substantial time commitment on the part of the parent. Against the
advice of Lovaas, Abdull interrupted A.A.’s treatment by cancelling a large number of therapy
sessions. Id. ¶ 27. Abdull cancelled 40 parent training programs (16% of 254) and a total of 327
scheduled treatment hours of all types. Id.
2. A.A.’s Six Month Progress Review
After A.A. had received IEIBT through Lovaas for seven months, A.A.’s clinical
supervisor Karin Morris conducted A.A.’s first six-month progress review on December 18,
2008. Id. ¶ 34. The review showed A.A. made only minor progress. A.A. had mastered only
one of four benchmarks and one of four Early Learning Measure Tests. Id. ¶ 35. In addition, he
engaged in a very high frequency of repetitive behaviors that had not responded to treatment. Id.
His developmental gains were only 1.8 months in 6 months’ time. Id. Based on A.A.’s amount
of progress within the first six months, Lovaas determined that A.A. was unlikely to recover
from autism with IEIBT and reviewed this prognosis with Abdull. Id. ¶ 40. Lovaas told Abdull

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that it would provide an additional six months of IEIBT to A.A., which would be followed by an
additional six months of services focused on a transition to alternative services. Id. ¶ 41.
Abdull avers that Lovaas decided at the initial six month review that A.A. was too old for
the program and had to be discharged. Abdull Aff. ¶ 15. Abdull expressed concern that Lovaas
had unfairly projected that A.A. would not recover after only the first six-month review when the
Informed Consent states that children will receive two consecutive six-month periods of therapy
to show significant process toward recovery. Larsson Aff. ¶ 38. According to Lovaas, staff
members explained to her that Lovaas was not making a decision to discharge A.A. at this
juncture. Id. ¶ 40. Rather, they were informing her that, based on the results of therapy after
seven months, A.A. would, in all likelihood, not make the amount of progress required under the
Medical Assistance program to justify a continuation of IEIBT services beyond twelve months of
treatment. Id. If, however, A.A.’s recovery-oriented skills did accelerate at the end of twelve
months of IEIBT treatment, Lovaas would recommend continued IEIBT treatment. Id. ¶ 46.
3. Abdull’s Requests to Replace Staff
After the six-month review, Abdull requested that Lovaas replace Morris as A.A.’s
clinical supervisor. Id. ¶¶ 46-47. Lovaas informed Abdull that it did not have another clinical
supervisor available, and as a result A.A. would have to be discharged. Id. ¶ 47. One of Lovaas’
clinical directors, Charryse Fouquette (“Fouquette”), volunteered to act as A.A.’s clinical
supervisor despite the need to make a special accommodation to her workload. Id. ¶ 53. During
A.A.’s time in the program, Abdull also requested, and Lovaas honored, two transfers of senior
behavior therapists based on her personal preference. Id. ¶¶ 73-74.

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4. Documentation for Absences
Due to Abdull’s high frequency of cancelling parent training appointments, Lovaas set a
limit of five missed appointments before it would accelerate A.A.’s discharge from the program.
Id. ¶ 78. Lovaas had implemented similar policies with 14 other families, the majority of which
were Caucasian. Id. At Abdull’s request, Lovaas agreed to excuse cancelled appointments if
Abdull submitted a doctor’s note for the absence. Id. ¶ 79.
5. A.A.’s Subsequent Evaluations and Treatment
A.A.’s outside psychologist, Mary Zielinski, evaluated A.A. in April 2009 and sent
Lovaas a letter on May 1, 2009, which stated:
I have seen significant improvement in [A.A.] since last assessed a year ago.
With that said, [A.A.] continues to have significant impairment with social
interaction and communication, consistent with the disorder. Given the progress
seen in [A.A.] using the [IEIBT] approach, I would recommend continued
services.
Id. Ex. 15.
Lovaas did not alter A.A.’s treatment plan as a result of the letter. Pl. Mem. Opp. Summ. J. 8.
On June 3, 2009, Lovaas conducted A.A.’s second six-month review. Larsson Aff. ¶ 54.
At this review A.A.’s developmental gains were 1.4 months in 6 months. Id. He had mastered
six of seven benchmarks geared toward long-term services but did not accelerate mastery of
recovery-oriented skills. Id. Lovaas recommended therapy focused on long-term transitional
goals rather than goals aimed toward recovery so that the family would be able to live the
highest quality life with the most independence. Id.
During the summer of 2009, A.A. received fewer hours of therapy. Id. ¶¶ 75-76. Two
Lovaas behavior therapists resigned, and Abdull declined to have trainees in her home despite

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agreeing to the provision of home services by trainees in the Informed Consent agreement. Id. ¶
76. Despite the reduction in hours, A.A. still received an average of 46 hours of therapy per
week during the six-month interval from June to December 2009, above the average number of
hours for children in the program at the time. Id.; Larsson Aff. Ex. 24.
On December 30, 2009, Lovaas conducted its third six-month review. Larsson Aff. ¶ 56.
A.A.’s developmental gains were only 0.3 months in 7.6 months’ time. Id. For this review
period, Lovaas focused on the skills Abdull requested, but A.A. was unable to make significant
progress in those areas. Id. Lovaas recommended another six-month term of services, which
would have been a total of 24 months in the program. Id. ¶ 57. Zielinski again evaluated A.A.
and found that A.A.’s scores fell in the low range of functioning for most areas assessed.
Larsson Aff. Ex. 16. In February 2010, after 21 months with Lovaas, Abdull transferred A.A.
from Lovaas to a long-term care organization. Id.
D. Abdull’s Complaints to Administrative Agencies
During A.A.’s time in the Lovaas program, Abdull complained about receiving
discriminatory treatment on multiple occasions. Id. ¶ 58. In response, Lovaas reviewed its
policies each time and determined that it was not acting in a discriminatory manner. Id. Lovaas
rewrote objectives and mastery criteria for A.A. according to Abdull’s preferences. Id. For
example, it rewrote a benchmark requiring A.A. to learn to eat with utensils because Abdull
indicated that mastering that skill was not culturally appropriate. Id.
Abdull contacted the Minnesota Ombudsman’s Office, ARC Greater Twin Cities, the
Minnesota Disability Law Center, and the Minnesota Board of Psychology about the alleged

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discriminatory treatment by Lovaas. Id. ¶¶ 59-63. No agency determined that Lovaas engaged
in discriminatory practices toward A.A. and Abdull. Id.
III. DISCUSSION
A. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered if there exists no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
The United States Supreme Court, in construing Federal Rule 56(c), stated in Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986):
In our view, the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof
at trial.
On a motion for summary judgment, the court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
However, the nonmoving party may not "rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a genuine issue for trial."
Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
If the nonmoving party presents evidence sufficient to permit a reasonable jury to return a
verdict in its favor, summary judgment is inappropriate. Id. However, “the mere existence of
some alleged factual dispute between the parties is not sufficient by itself to deny summary
judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.’” Get
Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)(citation omitted). Moreover, a

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plaintiff facing a summary judgment motion cannot "get to a jury without any significant
probative evidence tending to support the complaint." Rath v. Selection Research, Inc., 978 F.2d
1087, 1091 (8th Cir. 1992), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242. In addition,
"summary judgment need not be denied merely to satisfy a litigant's speculative hope of finding
some evidence that might tend to support a complaint." Krenik, 47 F.3d at 959.
B. Count 1: National Origin and Race Discrimination in Violation of 42 U.S.C. §2000a
1. Plaintiff failed to establish a prima facie case for discrimination
42 U.S.C. §2000a prohibits discrimination on the grounds of race, color, religion, or
national origin in places of public accommodation. In order to establish a prima facie case for
discrimination under 42 U.S.C. §2000a, plaintiff must show that she (1) is a member of a
protected group; (2) was similarly situated by circumstance to other individuals outside that
group; and (3) was treated more harshly or disparately than similarly situated non-group
members. O’Neal v. Moore, 2008 U.S. Dist. LEXIS 99641, 2008 WL 5068947, at *24 (D.
Minn. Aug. 22, 2008), aff’d, 355 F. App’x 975 (8th Cir. 2009).
Lovaas is entitled to summary judgment on this claim because Abdull fails to provide
evidence that either she or A.A. were treated less favorably than similarly situated families who
are not Somali-American. Abdull lacks evidence that the Caucasian families referenced in her
affidavit are similarly situated. Much of the “proof” supporting this claim is hearsay or
speculative statements regarding the treatment received by Caucasian families. See, e.g., Abdull
Aff. ¶¶ 21-22, 25, 27. These statements are not based on first-hand knowledge and are therefore
disregarded on a motion for summary judgment. Blunt v. Lower Merion Sch. Dist., 826 F. Supp.

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2d 749, 762 (E.D. Pa. 2011).
The only “similarly situated” evidence that arguably can be considered is a Minneapolis
Star Tribune article which states that Lovaas provided 56 hours of therapy a week to an eightyear-old boy, records showing Morris treated another child from age four through eight, and the
deposition testimony of Sheri Radoux, whose children received therapy through Lovaas. Abdull
Aff. Exs. B, Q, R. This evidence, whether considered either individually or together, does not
establish the third element of a race discrimination claim under § 2000a. To support her claim
that Lovaas treated Caucasian children older than six but would not treat A.A. after he reached
age six, Abdull relies on the Minneapolis Star Tribune article featuring an eight year old being
treated by Lovaas and the fact that Morris treated a boy until he was eight. The mere fact that
Lovaas treated two Caucasian eight year olds, whereas A.A. was set to be discharged at an
earlier age, is not sufficient evidence of discrimination based on race or national origin. This is
especially true in light of Lovaas’ comprehensive evidence that each child’s treatment plan is
individually tailored to the child’s particular diagnostic assessment, progress, and goals.
Abdull offers the deposition of Sheri Radoux to show that Lovaas treated Caucasian
children for longer periods of time, even though these children showed a lack of progress.
Radoux’s testimony is insufficient to show that the other children referenced in the deposition
were similarly situated to A.A. or that A.A. received sub-standard treatment in comparison.
Specifically, the testimony does not address the Radoux children’s psychological assessments on
the Lovaas metrics or rate of progress as evaluated by a medical expert.
Additionally, Lovaas taught the Radoux children different skills than A.A. Id. Ex. R. A

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comparison is difficult in light of Abdull’s requests to alter the skills A.A. was learning, such as
not requiring A.A. to learn to eat with utensils. Abdull cannot effectively argue as an instance of
discrimination that Lovaas taught a Radoux child to eat with utensils, when Abdull herself
requested Lovaas not to teach A.A. this skill. In the absence of granular evidence on these
issues, it is not possible to compare, much less conclude, that any difference in the treatment that
A.A. received was based upon race or national origin. Abdull’s vague allegations of similarity
do not suffice for actual proof.
Abdull also asserts that Lovaas reassigned A.A.’s staff more frequently than it did for
other families. While the facts may support more frequent changes, there is no evidence that the
staff changes were in any way the product of racial discrimination by Lovaas. On the contrary,
Abdull herself requested these staff changes, and did so more frequently than most other parents.
Larsson Aff. ¶ 76. It is axiomatic that a self-inflicted divergence from the typical turnover in
staffing is an insufficient basis to claim the motivation was racial discrimination. Abdull also
alleges that Lovaas would hire additional staff if needed to fulfill a Caucasian parent’s requested
staff change (Abdull Aff. ¶ 15), but she offers no evidence to support this assertion.
Abdull further claims that Lovaas intentionally reduced the number of hours of therapy
A.A. was to receive. The amount of hours provided to A.A. in the summer of 2009 was 46 hours
per week, which is above the average number of hours per week for all groups of children during
this time. Further, Abdull could have received more hours had she allowed trainees to provide
services as stipulated in the Informed Consent. Id. ¶ 76; Id. Ex. 24. Again, these allegations are
insufficient to support Abdull’s claim of discrimination based on race or national origin.

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Lastly, there is no evidence that the “special rules” that Lovaas required Abdull to follow
resulted from race discrimination. The evidence shows that Lovaas established boundaries and
guidelines for Abdull not because of her race, but rather in response to Abdull’s numerous
cancellations and interruptions to A.A.’s therapy. Larsson Aff. ¶¶ 26-33. Furthermore, Lovaas
implemented the same steps and procedures with fourteen other families, the majority of which
were Caucasian, where parent compliance with the program was identified as a concern effecting
the success of a child’s treatment. Id. ¶ 78.
In sum, Abdull has failed to meet her burden of proof to support a claim of race or
national origin under this statute.
2. Section 2000a does not provide for the relief that Abdull seeks
In addition to failing to establish a prima facie case for discrimination, Abdull does not
seek a proper remedy under 42 U.S.C. § 2000a. That statute authorizes only preventive relief
such as injunctions or restraining orders. It does not provide for money damages. Newman v.
Piggie Park Enterprises, 390 U.S. 400, 402 (1968). Abdull requests punitive damages, attorneys’
fees, and costs. Am. Compl. [Docket No. 27] ¶ 48. She does not request injunctive relief and
has voluntarily removed Abdull from Lovaas. Abdull’s failure to seek a remedy authorized by
the statute is an additional, independent reason entitling Lovaas to summary judgment on this
claim.
C. Count II: National Origin and Race Discrimination in Violation of 42 U.S.C. §2000d
In her next cause of action, Abdull alleges that Lovaas violated 42 U.S.C. §2000d, which
states:

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No person in the United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subject
to discrimination under any program receiving Federal financial assistance.
To establish national origin and race discrimination under this statute, plaintiff must
prove: (1) she is a member of an ethnic minority; (2) she was denied participation in a federally
funded program because of her national origin; (3) she is otherwise qualified to receive the
benefit she claims she was denied. Atakpa v. Permiter OB-GYN Associates, P.C., 912 F. Supp.
1566, 1574 (N.D. Ga. 1994). To recover compensatory damages, plaintiff must show
“discriminatory intent.” Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 603, 607
(1983). Plaintiff must demonstrate that the plaintiff’s race, color, or national origin was the
defendant’s motive for the discriminatory conduct. Thompson By & Through Buckhanon v. Bd.
of Special Sch. Dist. No. 1 (Minneapolis), 144 F.3d 574, 581 (8th Cir. 1998).
Abdull alleges that A.A. was denied participation in a federally funded program due to
his national origin. Specifically, Abdull asserts A.A. was prematurely discharged from Lovaas
after only six months of treatment when he was entitled to a full year of IEIBT. The Informed
Consent states that a child may be discharged after six months of treatment. Larsson Aff. Ex. 7.
Abdull’s allegation is also belied by the undisputed factual record; A.A. was not discharged after
six months. Lovaas recommended that A.A. receive 24 months of treatment and treated him for
21 months before Abdull transferred A.A. to another program. Larsson Aff. ¶ 57. Twenty-four
months of services is within the range of time generally recommended for children in the Lovaas
program. Id. ¶ 42.
Abdull also asserts that A.A. was qualified to receive the benefit of additional IEIBT

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through Lovaas because he was “making progress.” Abdull Aff. ¶ 10, Ex. G, U, V. To support
this assertion, Abdull cites to A.A.’s progress toward goals other than those established by
Lovaas as sufficient justification for remaining in the IEIBT program. Id. Lovaas counters that,
although A.A. made some progress with their therapy, he did not make sufficient progress on
recovery-oriented skills to justify the cost of IEIBT. Larsson Aff. ¶ 41.
To support her contention that A.A. was qualified for continued services through Lovaas,
Abdull relies on A.A.’s external psychologist Mary Zielinski’s May 1, 2009 letter in which she
states:
I have seen significant improvement in [A.A.] since last assessed a year ago.
With that said, [A.A.] continues to have significant impairment with social
interaction and communication, consistent with his disorder. Given the progress
seen in [A.A.] using the [IEIBT] approach, I would recommend continued
services.
Abdull Aff. Ex. L. Lovaas, however, interpreted Zielinski’s letter as confirming its conclusions
that A.A. still had significant autistic behaviors and was best served by long-term services.
Larsson Aff. ¶ 42. Zielinski does not offer a medical assessment showing that A.A. was making
the level of progress required by Medical Assistance to show that IEIBT was “medically
necessary” for A.A. At best, these three sentences of Zielinski’s letter suggest a possible
medical disagreement between Dr. Larsson and Dr. Zielinski. Even in this scenario, without
more, Plaintiff has failed to show that A.A. was denied access to a federally funded service
which he was qualified to receive as a result of intentional discrimination.

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D. Count III: Public Accommodation Discrimination in Violation of the Minnesota
Human Rights Act, Minn. Stat. § 363A.11
1. Abdull failed to establish a prima facie case for discrimination by a place
of public accommodation
Under Minn. Stat. § 363A.11, it is a discriminatory practice to deny any person the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, and
accommodations of a place of public accommodation because of race, color, creed, religion, or
national origin. The elements of a prima facie case are: (1) the plaintiff is member of a protected
class; (2) the defendant discriminated against plaintiff regarding the availability of its facility; (3)
the discrimination was because of plaintiff’s membership in a protected class. Monson v.
Rochester Athletic Club, 759 N.W.2d 60, 63 (Minn. Ct. App. 2009).
The parties do not dispute that Abdull, as a Somali-American, is a member of a protected
class. As previously discussed in the context of Abdull’s federal claims, Abdull fails to provide
evidence that Lovaas discriminated against her family in its provision of services. Therefore,
Abdull has not established a prima facie case under the statute, and summary judgment for
Lovaas on this claim is granted.
2. Lovaas is likely not a “public accommodation” under Minn. Stat. § 363A.11
Lovaas argues that Minn. Stat. § 363A.11 does not apply to Lovaas because Lovaas is not
a “public accommodation.” Whether an entity is a “public accommodation” under the MHRA
depends on (1) the selectiveness of the group in admission of its members and (2) the existence
of limits on the size of the membership. Wayne v. MasterShield, Inc., 597 N.W.2d 917, 921
(Minn. Ct. App. 1999) (citing U.S. Jaycees v. McClure, 305 N.W. 2d 764, 770 (Minn. 1981)).

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Entities which are very selective with respect to membership, which screen members, and which
limit the size of the group’s membership are not places of public accommodation under the
MHRA. Wayne, 597 N.W.2d at 921; Gold Star Taxi & Transp. Serv. v. Mall of Am. Co., 987 F.
Supp. 741, 752-753 (D. Minn. 1997).
Lovaas contends it is not a public accommodation because each child treated by Lovaas
must meet specific intake criteria. The number of patients it can treat is also limited by staffing
constraints. Conversely, Abdull argues that Lovaas fits within the definition of a “public
accommodation” because a large percentage of its services are paid for through public funding.
The Court has serious doubts whether all corporations receiving public funding are a public
accommodation, in light of the current case law. The Court need not decide this question,
however, in light of Abdull’s failure to establish a prima facie case for discrimination.
E. Count IV: Aiding, Abetting, and Obstruction in Violation of the Minnesota
Human Rights Act, Minn. Stat. § 636A.14
Abdull contends that Dr. Larsson, Scott Wright, Karin Morris, and other agents and
employees of Lovaas acted in concert to discriminate against Abdull and A.A. The MHRA
provides that it is an “unfair discriminatory practice for a person to intentionally aid, abet, incite,
compel, or coerce a person to engage in any practices” forbidden by the MHRA. Minn. Stat. §
363A.14(1). However, an underlying discrimination claim is a prerequisite to a claim of aiding
and abetting under the MHRA. Minn. Stat. § 363A.14; McDonald v. City of St. Paul, 679 F.3d
698, 708 (8th Cir. 2012). Because Abdull has failed to establish a prima facie case for the
underlying claim of discrimination by a place of public accommodation under Minn. Stat. §
363A.11, summary judgment on the aiding and abetting claim is also proper.
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F. Plaintiff’s Motion to Strike
Abdull moved to strike the affidavits of Dr. Eric Larsson and John Mulligan submitted in
tandem with Lovaas’ Reply Memorandum. Because the Court finds that summary judgment in
favor of Lovaas is proper based solely on the evidence presented in Defendant’s Summary
Judgment Memorandum, the issue of the timeliness of the Larsson and Mulligan affidavit is
moot.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendant’s Motion for Summary Judgment [Docket No. 33] is GRANTED.
2. Plaintiff’s Motion to Strike the Affidavits of Dr. Eric Larsson and John Mulligan
[Docket No. 52] is DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: December 2, 2014.

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