Weiss v. Rutgers University et al
Filing
54
OPINION. Signed by Judge Claire C. Cecchi on 6/10/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KAREN WEISS,
Civil Action No.: 12-6834
Plaintiff
OPINION
V.
RUTGERS UNIVERSITY, ET AL,
Defendants.
CECCHI, District Judge.
Before the Court is the motion to dismiss of Defendants Rutgers University, Rutgers
Graduate School of Applied and Professional Psychology, Douglass Developmental Disabilities
Center, Susan Forman, Sandra Harris, Robert La Rue, Stanley Messer, and Kimberly Sloman (the
“Rutgers Defendants”). (ECF No. 44). The Court decides the Motion without oral argument
pursuant to Rule 78 of the Federal Rules of Civil Procedure.’ For the reasons set forth below, the
Court will grant in part and deny in part the Motion.
I.
BACKGROUND
This case arises out of Plaintiffs enrollment and subsequent dismissal from the Rutgers
Graduate School of Applied and Professional Psychology (“Rutgers GSAPP”), (CompL ¶J 212
The Court considers any new arguments not presented by the parties to be waived. See
Brenner v. Local 514. United Bhd. of Carpenters & Joiners, 927 F.2d 1283. 1298 (3d Cir. 1991)
(“It is well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).
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First Amended Complaint, ECF No, 21.
22. 60-81). The Defendants are all affiliated with Rutgers GSAPP, and interacted with Plaintiff
during her enrollment as a student in the school. Plaintiff claims that Defendants discriminated
against her because of her learning disability, and that this discrimination led to her being
dismissed from the school. Defendants contend that the decision to dismiss Plaintiff was an
academic decision, based on Plaintiff’s poor academic performance. (Def. Br. 1).
The following facts, taken from the Amended Complaint (ECF No. 21), are taken as true
for the purposes of this Motion. Plaintiff has a Cognitive/Visuospatial Processing Disorder and a
Mixed Learning Disability. (Compi.
¶ 17). Plaintiff claims that these disabilities limit her ability
to learn, read, concentrate, think, and communicate. Dr. Cohen, who evaluated Plaintiff in 2003
and 2008 noted that Plaintiff had “significant deficits in the processing of visual-perceptual
information, specifically related to numerical analysis and three-dimensional position of objects
in space,” and significant delays “for understanding directions, reading fluency and math fluency.”
(Id.J 18).
Plaintiff is a high-school and college graduate who was admitted to Rutgers GSAPP
without disclosing her alleged disability. (Id.
2008. (Id.
¶
¶IJ 20-22). She matriculated to Rutgers GSAPP in
22). In order to obtain a quiet room and additional time for her exams, Plaintiff
disclosed her disabilities to the school and certain professors during her first semester, (Id. ¶T 2425). Plaintiff received grades of ‘A”s except for one “B+” her first semester. (Id. ¶ 23). One of
Plaintiffs “A” grades was the result of an additional assignment given by a professor outside of
the semester b which she could improve her grade from a “B” to an “A.” (Id.
¶ 27).
An apparent requirement of Rutgers GSAPP is completion of a series of practicums, which
are supervised work assignments in a clinical setting. (Id. ¶ 26). For example. given that Plaintiff
was an applied psychology student. her practicums included work at the New Brunswick Public
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Schools, the Douglass Developmental Disabilities Center (“DDDC”), and the Highland Park Teen
Center (‘HPTC”). (Id. ¶i 29, 35, 46). Plaintiffs first three semesters of such practicums resulted
in passing grades, but in her second semester her evaluation indicated that she needed to work on
her organizational skills.
( ¶J 27-33).
Plaintiffs trouble began in fall 2010, when she commenced a practicum at the Douglass
Developmental Disabilities Center, one of the Rutgers Defendants. (Id.
¶ 35). In late September,
Plaintiffs supervisor Defendant La Rue told Plaintiff that four DDDC staff members had
approached him claiming that Plaintiff asked questions at inappropriate times and required
additional direction regarding her role at DDDC. (Id.
¶ 36). Plaintiff claims that these difficulties
are symptomatic of her alleged disability. (Id.)
In early November, Plaintiff emailed La Rue to ask whether La Rue and two other teachers
could meet with her to discuss a project they were collaborating on. (Id.
¶ 37). La Rue replied that
the two other teachers would not attend because they were busy. (j) Plaintiff followed up the
next day, asserting to La Rue that a meeting was necessary because “there was miscommunication
and confusion” about some of the treatment analyses concerning a student. (Id.) That meeting did
not occur. (Id.) Plaintiff avers in her complaint that the confusion and miscommunication was a
limitation caused by her disabilities. ()
The next day, La Rue emailed Plaintiff materials to use while drafting a report, which La
Rue requested be completed by November 17, 2010. (Id.
¶ 38). Plaintiff requested an extension,
which was denied, (Id.). When Plaintiff turned in her report, she asked for more training regarding
how to calculate and interpret the data. La Rue did not give Plaintiff instruction, hut instead made
edits to the report. (Id.
¶ 39).
In December 2010, La Rue wrote what Plaintiff alleges was a positive report of Plaintiffs
performance at DDDC. (Id.
¶ 40). Nonetheless, Defendant Forman and a non-party Professor
Haboush informed Plaintiff in January 2011 that Plaintiff had received an incomplete grade based
on La Rue’s report. (Id.
¶ 30). Later that same month. Plaintiff had a meeting with Defendant
Harris in which Harris told Plaintiff that she did not think that Plaintiff could be provided with a
practicum appointment for the following year because she “suspect[s] but doesn’t know for sure
that (Plaintiff has] a learning disability.” (Id.
communication with Defendant Harris, (Id.
¶ 42). Over the next week, Plaintiff had email
¶ 43).
Harris informed Plaintiff that she would not be
offered a position at the DDDC practicum because Plaintiff was not able to recognize her
difficulties at the DDDC. (Id.)
Thereafter, Plaintiff again met with Defendant Forman and Haboush regarding Plaintiff’s
performance at the DDDC practicum. (Id.
¶ 44). During the meeting, Haboush told Plaintiff that
Haboush would change Plaintiffs DDDC practicum grade from an incomplete to a pass,
depending on Plaintiffs performance during the spring 2011 semester. (Id.)
Plaintiff subsequently returned to DDDC for that spring semester.
(. ¶
45). Plaintiff
alleges that with the assistance of hands-on training from teacher Maria Melillo and Defendant
Sloman she was able to perform adequately. (Id.) However, once Melillo stopped providing hands
on training and Defendant Sloman’s hands on training became less frequent, Plaintiff avers that
her performance weakened. (Id.
¶J
45-46). Plaintiff also requested one on one training from
Defendant La Rue, which was denied because La Rue did not have enough time to train Plaintiff.
(Id. ¶48).
On March 14, 2011, Plaintiff began an additional practicum at HPTC, which is operated
by Defendant Highland Park Board of Education. (Id.
¶ 46). On May 6,
2011 she was dismissed
from HPTC because of alleged miscommunications with students’ parents about what transpired
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during Plaintiffs counselling sessions with them. (Id. ¶ 49). Plaintiff spoke to Haboush by
telephone that same day. and Plaintiff wrote a letter to the GSAPP faculty “explaining Plaintiffs
requests for reasonable accommodations and how Plaintiffs disabilities had affected Plaintiffs
practicum.” (Id. ¶j 50-51).
Plaintiffs academic standing with the school was then in doubt. She was terminated from
the DDDC by Defendant Sloman on May 13, 2011. (Id. ¶ 52) On May 16, 2011 Defendant Forman
advised Plaintiff that Plaintiff could not take a required examination in June 2011. (Id.
¶ 53). On
June 15, 2011 Plaintiff was told that she should not be providing care to clients due to the fact that
her academic standing was currently under consideration. (Id.
¶ 59). After an opportunity to meet
with a GSAPP sub-committee, Plaintiff was dismissed from the program. (Id. ¶J 58, 61). Plaintiffs
various attempts to appeal the dismissal were denied. (Id. ¶T 65-81). Plaintiff claims that she has
been unable to gain admission to other graduate programs in school psychology because
Defendants have refused to provide the references Plaintiff requires for these other programs.
(
¶82).
II.
LEGAL STANDARD
For a complaint to survive dismissal pursuant to Rule 1 2(b)(6), it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft
yJbi, 556 U.S. 662. 678 (2009) (quoting
tl.Co.v.T’ol, 550 U.S. 544, 570(2007)).
In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving
party.
See Phillips v. Cnty. of Allegheny, 515 F.3d 224. 234 (3d Cir. 2008).
However, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Iornl, 550 U.S. at 555. Furthermore, “[a] pleading that offers labels and conclusions or a
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formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice
if it tenders naked assertions devoid of further factual enhancement.” lgbal. 556 U.S. at 678
(internal citations and quotations omitted). Accordingly, “a complaint must do more than allege
the plaintiff’s entitlement to relief. A complaint has to ‘show’ such entitlement with its facts.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
III.
DISCUSSION
Plaintiff brought six claims in this case, but has withdrawn her claims under Section 504
of the Rehabilitation Act (“RA”) and Title II of the Americans with Disabilities Act (“ADA”)
against the individual Defendants. (P1. Opp. p. 15). Plaintiff’s remaining claims are: (1) violations
of Section 504 of the Rehabilitation Act and Title II of the ADA against Rutgers, Rutgers GSAPP;
the Highland Park Board of Education; and DDDC (the “Institutional Defendants”); (2) violations
of the New Jersey Law Against Discrimination (“NJLAD”) against all defendants; (3) violations
of the New Jersey Developmentally Disabled Rights Act (“DDRA”) against the Institutional
Defendants; (4) breach of the covenant of good faith and fair dealing against Rutgers and Rutgers
GSAPP; and (5) common-law conversion against Rutgers and Rutgers GSAPP. The Court will
address each in turn.
A.
Plaintiff’s RA, ADA And NJLAD Claims
With limited exceptions. the same standards apply to both RA and ADA claims. CG v, Pa.
pI.ofc.. 734 F.3d 229. 235 (3d Cir. 2013). In order to state a claim under both Section 504
of the RA and Title 11 of the ADA, a plaintiff must allege facts showing that plaintiff ii) has a
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ADA Title II provides 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,
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disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the
benefits of the program or was otherwise subject to discrimination because of her disability.”
Chambers v. Sch. Dist. Of Phila. Bd. Of Educ., 587 F.3d 176, 189 (3d Cir. 2009). Prong three of
the RA and ADA claims differ in that the RA requires the disability to be the sole cause of denial
of benefits or discrimination and the ADA requires only that the disability be the “but for” cause
of the denial of benefits or discrimination. New Directions Treatment Sew. v. City Of Reading,
490 F.3d 293, 300-01 n.4 (3d Cir. 2007). As for the NJLAD, New Jersey courts apply federal
standards to its provisions. Mucci v. Rutgers, No. 08-4806, 2011 WL 831967, at *21 (D.N.J. Mar.
3, 2011) (“New Jersey courts therefore apply the standards developed under the ADA when
analyzing NJLAD claims”); see also, Lasky v. Moorstown Tp., 42 A.3d 212, 216-17 (N.J. Super.
App. Div. 2012) (applying ADA Title II standards to NJLAD discrimination claims).
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It is not contested that Plaintiff has a disability for the purposes of this Motion. The Rutgers
Defendants argue that (1) Plaintiff has not alleged that she is “otherwise qualified” for the program
and (2) Plaintiff has not alleged that she was discriminated against because of her disability. (Def.
Rep. 2-3).
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132.
RA section 504 provides that “[nb otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title, shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance” 29 U.S.C. §
794. It is uncontested that Rutgers receives federal financial assistance.
The NJLAD provides that “[a]ll persons shall have the opportunity. to obtain all the
accommodations, advantages, facilities, and privileges of any place of public accommodation”
without discrimination on the basis of disability.” N.J.S.A. 10:5-4, Rutgers is a place of public
accommodation. N.J.S.A. 10:5-5(1).
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.
.
1.
Whether Plaintiff Is “Otherwise Qualified”
The Rutgers Defendants contend that Plaintiff has not pled that she is otherwise qualified
for the program because she has not identified a specific accommodation that would result in
acceptable performance. (Def. Br. 5). They argue that this is particularly so in light of the
accommodations Plaintiff received that did not result in acceptable academic performance. (Def.
Br. 8). The Court disagrees. ADA Section 1213 1(2) states that someone is “otherwise qualified”
for a program if they meet the essential eligibility requirements of the program “with or without
reasonable modifications” to the program. In other words, a plaintiff would need to be able to meet
the program’s requirements “in spite of her handicap.” Southeastern Cmty. Coil. v. Davis, 442
U.S. 397. 406 (1979). However, to the extent that Plaintiff alleges that she was unable to pass her
courses because of a failure to provide reasonable accommodations, the Rutgers Defendants are
correct that Plaintiff bears “the burden of proving that a reasonable accommodation existed that
would enable her to meet the requirements” of the program. Millington v. Temple Univ. Sch. of
Dentistry, 261 Fed. App’x 363, 366 (3d Cir. 2008).
Plaintiff pled that she gained admission to the program without disclosing her disability.
(Compl.
¶ 21).
Plaintiff alleges that she performed well in the program prior to her practicum at
DDDC: she pleads that she obtained high marks in her coursework (Compl. ¶T 23-25), that she
was able to obtain passing marks in two prior practicums (Compi. ¶i 28-31). and that she took and
passed the 2010 General Comprehensive Examination (Compl. ¶ 34). With respect to
accommodations relevant to her practicum work Plaintiff further alleges that she was able to obtain
“positive feedback” when she was provided with hands-on training sessions, (Compl. ¶ 45). Taken
together. and drawing all inferences in favor of Plaintiff Plaintiffs complaint has alleged facts
plausibly supporting that she could meet the essential eligibility requirements of the program with
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reasonable modifications, namely the hands on training sessions.
Defendant further argues that the Court should recognize and defer to the school in finding
that Plaintiff is not academically qualified for the program. (Def. Br. 12-13). The Court is mindful
of the deference given to academic decision making in the ADA context. Millington, 261 Fed.
App’x at 367 (university “decisions are viewed with the deference ordinarily afforded educational
institutions for decisions relating to their academic standards”). However, this deference does not
override this Court’s duty to draw all reasonable inferences in favor of the non-moving party at
the motion to dismiss stage. The Court is unpersuaded that the Complaint’s factual allegations
support academic deference, and will not defer to the Rutgers Defendants absent a fuller record.
See Hershman v. Muhlenberg Coil., No. 13-7639, 2014 WL 1661210, *3
11.4
(ED. Pa. Apr. 24,
2014). Indeed, every appellate case cited by the Rutgers Defendants as extending deference to
academic decision making contemplates a full record. Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 217 (1985) (reviewing the district court’s decision after a four day bench trial); Davis,
442 U.S. at 401 (reviewing the district court’s decision after a bench trial); Bd. of Curators of the
Univ. of Mo. v. Horowitz, 435 U.S. 78, 80 (1978) (reviewing the district court’s decision after
trial); Hankins v. Temple Univ., 829 F.3d 437, 439 (3d Cir. 1987) (reviewing the district court’s
decision on summary judgment: the court held hearings over several days related to a preliminary
injunction); Doe v. New York Univ., 666 F.2d 761. 776 (2d Cir, 1981) (applying educational
deference in the context of reviewing the district court’s summary judgment determination):
3 F.3d 850, 854 (3d Cir. 1993) (reviewing the
district court’s decision on summary judgment); Wynne v. Tufts Lniv. Sch. of Med.. 932 F.2d 19.
20 (1st Cir. 1991) (reviewing the district court’s decision on summary judgment).
Only one case cited by the Rutgers Defendants has dismissed a similar ADA claim on the
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“otherwise qualified” prong in the initial stages due to academic deference. This case is
distinguishable. In Manickavasagar v. VCU, 667 F. Supp. 2d 635 (E.D. Va. 2009), the plaintiffapplicant had not been admitted to the defendant school, and so had not had an opportunity to
demonstrate any capability in the program. That court found Manickavasgar’s averments
indicating his scores fell within a range “acceptable” to admission was insufticient to state a claim,
considering other averments indicating that his scores were below the median, that only 50% of
interviewed applicants would be admitted, and that his interview went poorly. Id. at 645. Here,
drawing all inferences in favor of plaintiff, the Court finds that the allegations speaking to the
applicant’s admission to the program and early success in both the classroom and practice
settings—both absent in Manickavasgar—states a claim that she is “otherwise qualified.”
2.
Whether Plaintiff Has Pled Discrimination
In order to satisfy the third prong of the inquiry, Plaintiff must have alleged that she was
denied the benefits of the program or was otherwise subject to discrimination because of her
disability. Chambers, 587 F.3d at 189. The Rutgers Defendants argue that the complaint does not
properly allege that her alleged disability played a part in her dismissal from the program. To the
contrary, Plaintiff clearly alleged that a professor told her that she would not be placed into a
practicum because of her learning disability. (Compl. ¶ 42). Drawing all reasonable inferences for
plaintiff, this facial statement is enough at the pleading stage to show that Plaintiff was “subject to
discrimination because of her disability.” Chambers, 587 F.3d at i89.
The Rutgers Defendants also argue that Plaintiff has not set forth a prima Jcie case for
failure to provide reasonable accommodations. Citing ADA Title I cases and regulations, they
contend that in order to state a reasonable accommodations claim. Plaintiff was required to make
clear to her professors that each request was related to her disability. (Def. Br. pp. 19-20 (citing
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Coiwell v. Rite Aid Cow., 602 F.3d 495, 506 (3d Cir. 2010)) (“[E]ither by direct communication
or other appropriate means, the employee must make clear that [he/she] wants assistance for his or
her disability”).
Assuming. without deciding, that the Court should apply standards developed in the Title
I employment context to the instant case, the Court finds that Plaintiff has pled facts which
plausibly demonstrate that her professors knew her requests were related to her disability. Plaintiff
states that she informed the school office of disability services of her disabilities. (Compl.
Plaintiff has pled that her disability seemed apparent to at least defendant Harris. (jç
¶ 24).
¶J 42-43).
And Plaintiff’s alleges that her requests were related to these disabilities. (See, e.g., Compl.
¶f 17-
18, 37, 39, 45). Taken together, these facts are enough to plausibly demonstrate that the Rutgers
Defendants were aware that Plaintiff’s requests were for assistance with her disability.
Accordingly, the Court will deny the Rutgers Defendants’ motion to dismiss Plaintiff’s disability
claims.
B.
Plaintiffs DDRA Claim
The Rutgers Defendants argue that Plaintiff’s DDRA claim is fatal because she does not
allege that she has a developmental disability as defined by the statute. Plaintiff submitted no
opposition to this point. The Court agrees with the Rutgers Defendants. Plaintiff has not alleged a
severe, chronic disability that limits three or more of major life activities such as “self-care,
receptive and expressive language, learning, mobility, self-direction and capacity for independent
living or economic self-sufficiency” N.J/S.A. 30:6D-3(a)(4), Accordingly, Plaintiff’s DDRA
claim will be dismissed without prejudice.
C.
Plaintiffs Breach Of The Covenant Of Good Faith And Fair Dealing Claim
In New Jersey, “[i]n the absence of a contract, there can be no breach of an implied
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covenant of good faith and fair dealing.” Wade v. Keslier Inst., 778 A.2d 580, 584 (N.J. Super.
App. Div. 2001). Plaintiff has not alleged that she is a party to a contract with any of the
Institutional Defendants, and New Jersey courts have declined to extend contract principles to the
university context. Mittra v. Univ. of Med. & Dentistry of N.J.. 719 A.2d 693, 697-98 (N.J. Super.
App. Div. 1998) (limiting review in an academic dismissal case to whether there was a ‘fair
procedure’). Accordingly, the instant claim will be dismissed without prejudice.
D.
Plaintiff’s Conversion Claim
Under New Jersey law, conversion is defined as “an unauthorized assumption and exercise
of the right of ownership over goods or personal chattels belonging to another, to the alteration of
their condition or the exclusion of an owner’s rights.” Bondi v. Citigroup, Inc., 32 A.3d 1158, 1190
(N.J. Super. App. Div. 2011). Plaintiff claims that the Institutional Defendants have converted her
tuition money. (Compl. ¶J 104-105). In the case of an action for conversion of money, “the injured
party must establish that the tortfeasor exercised dominion over its money and repudiated the
superior rights of the owner.” Id. Here, Plaintiff paid tuition and fees in return for instruction. Thus,
Plaintiff has not plausibly pled that she has superior rights to the money, or that it actually belongs
to her. Accordingly, the instant claim will be dismissed without prejudice.
IV.
CONCLUSION
For the forgoing reasons, the Rutgers Defendants’ motion to dismiss is anted in part and
denied in part. Plaintiff will be given thirty days to amend her complaint to address any deficiencies
addressed in this opinion. An appropriate order accompanies this opinion.
DATED:Jf.2014
/
CLAIRE C. CECCHI, U.S.D.J.
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