ARCHUT v. ROSS UNIVERSITY SCHOOL OF VETERINARY MEDICINE et al
Filing
41
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 11/19/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KATHERINE ARCHUT,
Plaintiff,
CIVIL ACTION NO. 10-1681 (MLC)
MEMORANDUM OPINION
v.
ROSS UNIVERSITY SCHOOL OF
VETERINARY MEDICINE, et al.,
Defendants.
I.
BACKGROUND
A. College
B. Veterinary School
II. ANALYSIS
A. Extraterritoriality
i.
RHA and Ross
ii. ADA and Ross
iii. NJLAD and Ross
iv. Anti-Discrimination Statutes and DeVry
B. Jurisdiction
III. CONCLUSION
Plaintiff, Katherine Archut (“Archut”), brought this action
against Defendants, Ross University School of Veterinary Medicine
(“Ross”) and DeVry, Inc. (“DeVry”) (collectively, “Defendants”),
alleging disability discrimination in violation of the
Rehabilitation Act, 29 U.S.C. § 794 (“RHA”), the Americans with
Disabilities Act, 42 U.S.C. § 12181 (“ADA”), and the New Jersey Law
Against Discrimination (“NJLAD”), as well as alleging common law
claims of breach of contract.
(See dkt. entry no. 1, Compl. at ¶¶
1, 47, 54, 60.)1
Defendants move for summary judgment in their
favor on all claims.
(See dkt. entry no. 32, Defs.’ Mot. for Summ.
J.)
The Court grants Defendants’ motion in part because the antidiscrimination laws allegedly violated in this case do not apply
extraterritorially to conduct in St. Kitts, and denies the motion
as to the common law claims of breach of contract.
I.
BACKGROUND
Archut, a former veterinary student, brought this action
alleging failure to reasonably accommodate against Ross, a
veterinary school in St. Kitts and Nevis, and DeVry, its parent
company.
(See dkt. entry no. 32-2, Defs.’ Statement of Undisputed
Material Facts at ¶ 3 (hereinafter “Defs.’ Statement”).)2
attended Ross from January 2008 until April 2008.
Archut
(Id. at ¶¶ 28,
112.)
1
Ross is identified as “Ross University School of Medicine,
School of Veterinary Medicine (St. Kitts) Limited” in
Defendants’ Brief in Support of the Motion for Summary Judgment.
(See dkt. entry no. 32-1, Defs.’ Br. in Supp. of Mot. for Summ.
J. at 1.)
2
Citations to Defendants’ Statement of Undisputed Material
Facts only include those facts that Plaintiff has failed to
dispute, unless otherwise noted. See L.Civ.R. 56.1(a) (“any
material fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion”); Smith v. Addy, 343
Fed.Appx. 806, 808 (3d Cir. 2009). We thus, after ensuring that
the parties’ respective statements of fact accurately summarize
the evidence of record, provide citation to their statements.
2
Ross is a corporation organized under the laws of the
Federation of St. Kitts and Nevis.
(Id. at ¶ 1.)
The school
operates on St. Kitts, receiving some administrative support from
an office in New Jersey.
(Id. at ¶¶ 3, 6.)
All decisions
regarding reasonable accommodations for students are made by
administrators working for Ross on St. Kitts.
(Id. at ¶¶ 6–7.)
Archut is a Virginia native, who received a college education at
West Virginia University (“WVU”) in West Virginia before applying
to Ross.
(Id. at ¶¶ 13–15.)
North Carolina.
A.
After she left Ross, Archut moved to
(Id. at ¶ 19.)
College
After Archut’s first semester of college, she was tested for a
learning impairment and eventually diagnosed with certain
“processing” impairments.
(Id. at ¶¶ 24–25.)3
Archut received a
four-page report with highly detailed descriptions of her testing
results.
(See Pl.’s Opp’n Statement at ¶ 25.)
According to the
report, Archut has an adequate level of development in verbal
skills, which include verbal reasoning ability, meaningful grouping
of information, mental computation, application of conventional
behavioral standards, and general fund of information.
3
(See dkt.
Archut describes her diagnosis as it was characterized in
the report that was issued following her psycho-developmental
evaluation. (See dkt. entry no. 37, Pl.’s Statement of Material
Facts in Opp’n at ¶ 25 (hereinafter “Pl.’s Opp’n Statement”).)
The report labeled Archut as having “Axis I 315.9 Learning
Disorder NOS.” Id.
3
entry no. 32-14, Decl. of Howard M. Wexler, Ex. N, at RUVM00117.)
Archut was also described as having “a well developed ability to
reason abstractly with visual information, and to sequence visual
information.”
(Id.)
Archut has adequately developed her abilities
in visual organization, differentiation between essential and
nonessential details, and visual-motor coordination.
(Id.)
Relative to her other performance abilities, Archut’s ability to
process information is considerably lower.
(Id.)
After discovering these impairments, Archut met regularly with
her academic support advisors and sought several accommodations,
including extra time on exams, a quiet room, and the use of a
calculator.
(Defs.’ Statement at ¶ 28.)
Archut did not have
someone read her exams to her (“a live reader”) until her fifth
semester in college, in the spring of 2006.
made limited use of this accommodation.
(Id. at ¶ 29.)
(Id. at ¶¶ 29–30.)
She
Archut
struggled academically at WVU:
She withdrew from Organic Chemistry I and II. (Id. at ¶ 34.)4
She received Ds in Introduction to Chemistry and College
Algebra. (Id.)
She received a C- in Introduction to Physiology. (Id.)
4
Archut denies that she performed poorly at WVU, countering
that she “did well enough to be admitted to Ross.” (Pl.’s Opp’n
Statement at ¶ 34.) Archut did not dispute her actual grades in
the classes, however, and thus these may be considered as
undisputed facts for the purposes of this motion. (Id. at ¶¶
32–35.)
4
She received Cs in Plane Trigonometry, Introduction to Animal
Physiology, Principles of Genetics, and General Microbiology.
(Id.)
She failed Animal Diversity while studying abroad at Murdoch
University in Australia. (Id. at ¶ 35.)
During college, Archut applied to half a dozen veterinary
schools in the United States and received rejections from all of
them before applying to Ross.
(Id. at ¶ 38.)
Archut’s application
did not mention the live reader accommodation she had received at
WVU; in her personal statement, however, she did mention her
learning disability and the fact that she had received extra time
on exams as an accommodation.
B.
(Id. at ¶ 40.)
Veterinary School
During the time period Archut was enrolled in Ross, she worked
with several different administrators to secure testing and class
accommodations.
On December 11, 2007, Rebecca Berger of WVU sent Bill Bingham
of Ross information regarding Archut’s learning impairments through
Ross’s Edison, New Jersey, office.
(Id. at ¶ 42.)
This faxed
letter stated that Archut received “extra time for tests, quizzes
and exams, extended time for in-class writing assignments, copies
of visual aids during each class period, assistance from her
professors in identifying note takers, the ability to tape-record
lectures, the use of hand held calculators when appropriate, and
periodic discussions with her professors.”
5
(Id.)
The letter did
not mention a live reader and stated that Archut would be
responsible for sending the most recent documentation of her
impairments and need for accommodations.
(Id. at ¶¶ 43–44.)
Ross held a student orientation on January 2, 2008, where
Archut was asked to complete a Personal Data Form with a section on
disabilities.
(Id. at ¶ 45.)
Archut indicated on the form that
she had dyslexia and required extra time for exams, but made no
request for a live reader.
(Id.)
On the same form, Archut rated
her reading ability as “good” and noted that she read over twenty
books for leisure per year.
(Id. at ¶ 46.)
Ross commonly provides two kinds of accommodations, both of
which Archut requested: extra time on exams and a room with minimal
distractions.
(Id. at ¶ 54.)
Ross provides other accommodations
upon student request, so long as the student fills out paperwork
requesting such special accommodation and can produce supporting
documentation.
(Id. at ¶¶ 55, 56.)5
Archut spoke with Ross’s
counselors about her accommodations on several occasions, including
5
Archut disputes that requests for other accommodations are
granted at Ross. (See Pl.’s Opp’n Statement at ¶ 55.) Archut
points to the transcript from the deposition of Defendants’
witness Jane Sandquist, who could only remember one request for
a different accommodation being granted, and that was merely an
adaptation of the request for a room with minimal distractions.
(Id. (citing Dep. of Jane Sandquist, Rubin Decl., Ex. B, T:19-5
to T:28-15.).) The Court is not persuaded that a genuine dispute
of fact exists here because the school did provide other
accommodations, as evidenced by Ross’s agreement to tape-record
Archut’s exams. (See Defs.’ Statement at ¶ 87.)
6
Elpida Artemiou, a student counselor responsible for handling
accommodation requests.
(Id. at ¶¶ 47, 48.)
Archut was
conditionally approved for testing accommodations on January 16,
2008, but was expected to provide supporting documentation.
at ¶¶ 60, 61.)
(Id.
There was a miscommunication regarding who would
provide the required “psycho-educational report” documenting the
results of a comprehensive evaluation that identified and detailed
Archut’s specific learning disability.
(Id. at ¶¶ 57–65.)6
Archut took her first multiple choice test on January 24,
2008.
(Id. at ¶ 63.)
first set of exams.
She failed that one, and the majority of her
(Id.)
The parties dispute when Archut first
requested a live reader: Archut claims the request came during
multiple conversations with Artemiou from the start of February,
while Defendants claim the request was made at the very end of the
month, on February 27.
(Id. at ¶¶ 66, 74.)7
After several meetings and emails, Archut produced the
required documentation for an audio accommodation on March 21,
2008.
(Id. at ¶¶ 67–71, 78–80, 81–87.)
While Archut had
specifically requested a live reader who could sit in the room and
6
Archut disputes that the delay was solely due to a
miscommunication, instead assigning blame to Ross’s New Jersey
office for losing the papers twice. (Pl.’s Opp’n Statement at ¶
67.)
7
In Archut’s papers, she claims that the request for a live
reader with multiple choice exams was in fact made during the
first week of classes in January. (See dkt. entry no. 36, Pl.’s
Br. in Opp’n to Summ. J. at 33 (hereinafter “Pl.’s Opp’n Br.”).)
7
read the exams aloud to her, the documentation she provided only
suggested that she would benefit from a more general audio
accommodation.
(Id. at ¶¶ 83–84.)
Ross, on receiving medical documentation demonstrating that
Archut needed an audio accommodation, offered to have all of
Archut’s exams tape-recorded.
(Id. at ¶ 87.)
The school did not
provide Archut with the live reader she had requested.
88.)
(Id. at ¶
When Ross offered to have Archut’s exams tape-recorded, she
still had one midterm in anatomy and all of her final exams to
take, which were more heavily weighted in the grading scheme.
at ¶ 102.)
(Id.
Ross gave Archut the tape-recording and headphones with
freedom to pause, rewind, and repeat the recording as often as she
liked during her exam.
(Id. at ¶ 103.)
Following her anatomy
midterm, Archut informed Artemiou that “the recording for the last
exam was fine,” but that the reader spoke too quickly.
104.)
(Id. at ¶
Archut asked that the next reader speak “much slower” with
pauses between questions.
(Id.)
She stated that she found the
recording only “slightly different from a live reader.”
(Id.)
Artemiou spoke with the professors and secured Archut’s requested
changes.
(Id. at ¶¶ 105–07.)
Despite these accommodations, Archut failed Microscopic
Anatomy & Embryology, Physiology, and Animal Nutrition, while
passing Anatomy with a C.
(Id. at ¶ 108.)
8
Archut claims that,
while she learned all the material required to pass these courses,
her test results do not reflect her knowledge.
(Id. at ¶¶ 109–11.)
On April 19, 2008, Archut was dismissed from Ross for poor
academic performance.
(Id. at ¶ 112.)
After an appeal of her
dismissal, Archut was readmitted on May 7, 2008, but she was told
that she would have to retake any classes she had failed from her
first year in order to remove the failing grades from her
transcript.
(Id. at ¶¶ 113–17.)
Archut declined to return to
Ross, applying instead to a master’s program in Reproductive
Physiology at North Carolina State.
II.
(Id. at ¶ 118.)
ANALYSIS
Extraterritorial application of the RHA, ADA, and NJLAD is a
threshold issue here.
The issue of extraterritoriality is one that
concerns the merits of the action.
See Morrison v. Nat’l Austl.
Bank, Ltd., 130 S.Ct. 2869, 2877 (2010); Animal Sci. Prods. v.
China Minmetals Corp., 654 F.3d 462, 466–68 (3d Cir. 2011), cert.
denied, 132 S.Ct. 1744 (2012).
The extraterritoriality inquiry
asks whether a defendant’s conduct can violate the statute if
performed outside the physical jurisdiction of the United States.
Morrison, 130 S.Ct. at 2883.
Accordingly, if a defendant is
subject to United States law, then any allegation that that
defendant has violated those laws can be brought before the federal
courts because it falls within the courts’ subject matter
9
jurisdiction.
The Court must first determine whether Defendants
were subject to the statutes of the United States and New Jersey.
A.
Extraterritoriality
Defendants argue that Archut’s claims under RHA and ADA cannot
“extend extraterritorially to cover Archut’s claims” because those
laws protect students facing disability discrimination only when
the discriminatory acts occur within the United States.
(See dkt.
entry no. 32-1, Defs.’ Mem. of Law in Supp. of the Mot. for Summ.
J. at 12 (hereinafter “Defs.’ Mem.”).)
Defendants claim that any
alleged discriminatory conduct occurred within St. Kitts and was
therefore beyond the reach of the domestic concern expressed when
these statutes were crafted.
(Id. at 13.)
Archut responds that the scope of the inquiry is much broader,
taking cognizance of “all available evidence” to determine whether
Congress intended the statutes to have extraterritorial effect.
(See Pl.’s Opp’n Br. at 14.)
There is a presumption against extraterritorial application of
United States law where Congress failed to expressly communicate an
intent to have the law apply extraterritorially.
S.Ct. at 2877–78, 2881.
Morrison, 130
This presumption derives from Congress’s
ordinary legislative concern with domestic, not foreign matters.
Id. at 2877.
Courts should interpret statutes to conform to this
expectation: “unless there is the affirmative intention of the
Congress clearly expressed to give a statute extraterritorial
10
effect, we must presume it is primarily concerned with domestic
conditions.”
Id.
The analysis begins with the text of the statute
and may proceed to other contextual sources indicative of
Congressional intent.
Id. at 2883; see Keller Found./Case Found.
v. Tracy, 696 F.3d 835, 844-46 (9th Cir. 2012).
The statute at issue in Morrison was § 10(b) of the Securities
and Exchange Act of 1934, 15 U.S.C. § 78a (“Exchange Act”), which
the foreign plaintiffs alleged was violated by foreign and American
defendants in connection with securities traded on foreign
exchanges.
130 S.Ct. at 2875.
After close analysis of the text in
the provisions and Congress’s legislative purposes as stated in the
Exchange Act, the Court concluded that the statute did not evince a
Congressional intent to overcome the presumption against
extraterritoriality.
Id. at 2883.
The Court noted that the
presumption should not be transformed into a “clear statement
rule,” requiring each statute to include magic words to achieve
extraterritorial application.
Id.
Rather, context can also be
consulted to give “the most faithful reading” of the statute.
i.
Id.
RHA and Ross
The RHA does not apply extraterritorially.
Neither the text
of the statute, nor outside sources of context such as the
legislative history or case law, communicate an affirmative
intention of extraterritorial application that would give rise to
liability for discriminatory acts occurring in a foreign country.
11
The RHA prohibits discrimination in any program or activity
against any “otherwise qualified individual with a disability in
the United States,” solely because of that person’s disability, by
any institution that receives federal grants or financial
assistance to any of the institution’s programs or activities.
U.S.C. § 794.
29
A “program or activity” includes “all the operations
of . . . a college, university, or other postsecondary
institution.”
29 U.S.C. § 794(b)(2)(A).
Archut argues that Ross is liable for violations of the RHA
because the school accepts federal financial assistance and is
closely bound to its parent company, DeVry, which is a United
States entity.
Archut argues that Ross is subject to the RHA
because of several contacts that Ross has with the United States:
Ross’s receipt of federal financial assistance, the close
relationship between Ross and DeVry, the legislative history of the
RHA, and Ross’s Student Handbook.
(See Pl.’s Opp’n Br. at 13–23.)
Archut argues that Ross is bound to abide by the RHA because
it offers federal financial aid to its students.
(See id. at 14.)
While Archut argues that the “program participation agreement” Ross
signed acts as a contractual agreement to abide by all United
States laws relating to disability discrimination, the agreement
itself fails to mention any such contractual arrangement.
(See
dkt. entry no. 38-8, Decl. of David B. Rubin, Ex. H (Exhibit J
therein contains a “Foreign School Program Participation Agreement”
12
for the term June 2007 to June 2008).)
Dictating standards for
American institutions after giving financial assistance is not
equivalent to making the same demands of foreign institutions,
however, even if the foreign schools received the same federal aid.
Congress must indicate that the statute was intended to have
the same effect on foreign institutions receiving federal funds as
on domestic ones.
Otherwise, the presumption against
extraterritoriality dictates that the statute should be read with
the assumption that Congress was only concerned with domestic
institutions’ anti-discrimination standards.
As the Court made
clear in Morrison, Congress must provide an express communication
of extraterritorial application in a statute; broad phrases such as
“any program or activity receiving Federal financial assistance”
give “uncertain indications” and do not suffice to overcome the
presumption.
29 U.S.C. § 794; 130 S.Ct. at 2883.
Archut also claims that the remedial purposes of the statute
support a broad reading.
(See Pl.’s Opp’n Br. at 18–19.)
Legislative history does show that Congress had the goal of
“prevent[ing] discrimination in federal financial assisted
programs” and “guarantee[ing] that there will be no discrimination
among recipients of Federal financial assistance.”
H.R. Rep. No.
88-914 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2394.
The
uncertain language in these phrases, however, does not require a
conclusion that either “recipients” or “assisted programs” was
13
intended to encompass both domestic and foreign institutions.
The
phrases are used generally, without indication that Congress meant
“all programs wherever located” or “all recipients, whether foreign
or domestic.”
Where Congress speaks generally, the presumption
requires courts to presume that Congress is concerned with domestic
matters.
To overcome that presumption, there must be an
affirmative indication in the statute to such effect.
130 S.Ct. at 2877–78.
Morrison,
Thus, the legislative history is not enough
to overcome the presumption against extraterritoriality.
Archut cites several cases and opinion letters from the United
States Department of Education, Office of Civil Rights (“DOE”) that
address the issue of American students studying abroad in programs
run by American universities.
(See Pl.’s Opp’n Br. at 16–18, 20.)
One case concerns a student from Lewis & Clark College who
participated in a study abroad program in Australia run by the
school.
Bird v. Lewis & Clark Coll., 104 F.Supp.2d 1271 (D. Or.
2000), aff’d, 303 F.3d 1015 (9th Cir. 2002).
The student brought
suit alleging that the school failed to provide reasonable
accommodations for her disability.
104 F.Supp.2d at 1274.
There,
the defendant was a United States federally-funded, educational
institution and, “[a]s a recipient of Federal financial assistance,
there is no dispute that the college must comply with both the
[RHA] and the ADA.”
Id.
extraterritorial dispute.
The district court did not address any
After the jury found for defendant
14
school, the student appealed the district court’s denial of her
motion for a new trial.
303 F.3d at 1021, n.1.
The defendant
argued to the Court of Appeals for the Ninth Circuit that the ADA
and RHA did not apply to its acts while in Australia because of the
presumption against extraterritoriality.
Id.
The Court of Appeals
declined to reach that issue and affirmed on the grounds that, when
viewed as a whole, the program did reasonably accommodate the
plaintiff’s disability.
Id.
The Bird case brings little persuasive authority to the
extraterritoriality issue here; the issue was not reached in Bird
and the application of American law to an American university being
sued by its American student is distinguishable from the case here.
The same distinguishing facts also appear in King v. Bd. of
Control, which dealt with Title IX: an American student sued
Eastern Michigan University based on conduct that occurred during a
five-week study abroad program in South America.
(E.D. Mich. 2002).
221 F.Supp.2d 783
Archut, much like King and Bird, is also a
United States citizen, but unlike Lewis & Clark College or Eastern
Michigan University, Ross is located in and accredited by a foreign
country.
(See Defs.’ Statement at ¶¶ 1–5.)
King carries even less persuasive weight than Bird because the
district court relied on a case preceding Morrison — Foley Bros.,
Inc. v. Filardo, 336 U.S. 281 (1949).
15
See King, 221 F.Supp.2d at
787.
In Foley, the Court suggested that the extraterritoriality
inquiry involves
a broader search for indications of Congressional intent, a
search which has as a rule encompassed a wide range of
materials beyond the plain language of the statute. This is so
because, as Foley makes clear, the court’s task is to
ascertain “unexpressed congressional intent.”
King, 221 F.Supp.2d at 787 (quoting Foley, 336 U.S. at 285).
In
Morrison, the Court explicitly disavowed a line of cases from the
Court of Appeals for the Second Circuit that described the
extraterritoriality inquiry as seeking to “ascertain” unarticulated
Congressional intent from sources outside the text of the statute.
130 S.Ct. at 2878–81.
Archut cites decisions from the regional offices of the DOE
that have read the statute to apply abroad.
at 19–20.)
(See Pl.’s Opp’n Br.
In those three decisions, the DOE analyzed the merits
of the students’ complaints without addressing whether the antidiscrimination statute applied abroad.
In Husson College, the school was based in Maine, the study
abroad program run by the school traveled to Honduras, and the
faculty alleged to have discriminated against the complainant were
located and made their decisions in Maine.
Rep. 180 (O.C.R. E.D., Boston 2005).
31 Nat’l Disability L.
The complaint failed because
there was a lack of evidence demonstrating the decision was
discriminatory.
Id.
16
In College of St. Scholastica, the school was located in
Minnesota, the study abroad program traveled to Ireland, and the
discriminatory decision-making process occurred on campus in
Minnesota.
3 Nat’l Disability L. Rep. 196 (O.C.R. Region V 1992).
The complainant prevailed because the school had failed to take the
necessary steps to ensure the student was not denied the benefits
of or excluded from participation in the study abroad program due
to the absence of effective auxiliary aids; the school also failed
to show it had established a grievance procedure.
Id.
In St. Louis University, the school was located in Missouri,
the study abroad program traveled to Spain, and the decision to
deny the student his requested auxiliary aid occurred in Missouri.
1 Nat’l Disability L. Rep. 259 (O.C.R. Region VII 1990).
The
university prevailed because the DOE determined that the university
had complied with the statute.
Id.
These letters from the DOE do not stand on all fours with the
facts of this case.
In the three letters Archut cites, the school
was an American college with American-based administrators making
decisions about accommodations within the United States.
Ross is
foreign educational institution and all decisions about Archut’s
accommodations were made in St. Kitts.
Additionally, these letters
fail to address the underlying question of extraterritoriality.
They cannot support the proposition that the statute applies
outside the United States.
17
Ross cites Arizona State University, an opinion letter from
the DOE in 2001 that directly addressed the issue of
extraterritoriality of Title II of the ADA and the RHA.
Disability L. Rep. 239 (O.C.R. Region VIII 2001).
22 Nat’l
There, an
American student complained that the American university failed to
provide an interpreter during his trip to a study abroad program
held in Ireland.
Id.
The school prevailed because the DOE
determined that the two statutes “do not extend
extraterritorially.”
Id.
This is more persuasive than the
opinions cited by Archut because Ariz. State Univ. squarely answers
a question that the other three opinions avoid.
Archut argues that the criticism that Congress directed at the
United States Supreme Court through the 1991 Civil Rights Act
Amendments for failing to interpret civil rights statutes broadly
is applicable here and should work to prohibit disability
discrimination wherever federal funds are received.
Opp’n Br. at 18–19.)
(See Pl.’s
This argument ignores the statement in
Morrison addressing these very amendments: “Congress provided
explicitly for extraterritorial application of Title VII, the
statute at issue in Aramco.
All this shows is that Congress knows
how to give a statute explicit extraterritorial effect—and how to
limit that effect to particular applications, which is what the
cited amendment did.”
130 S.Ct. at 2883, n.8.
18
Archut characterizes the relationship between Defendants as
“integrally incorporated,” such that they should be treated for
purposes of this motion as “one in [sic] the same.” (See Pl.’s
Opp’n Br. at 15–16.)
It is unclear what result Archut seeks from
such treatment: (1) that Ross be considered a United States
corporation much like DeVry, and thus subject to all antidiscrimination statutes, or (2) that DeVry be held responsible for
acts taken by Ross’s corporate agents in St. Kitts, namely
Artemiou, Fox, and other administrators involved in denying
Archut’s requested accommodations.8
Archut does not provide case
law or factually-based arguments supporting either result.
Neither
argument is availing with respect to the extraterritorial issue of
the RHA before the Court.
Archut argues that broad language in the statute regarding
“any program receiving federal financial aid” encompasses all
foreign and domestic programs meeting that description and binds
them to the RHA’s prohibition on disability discrimination.
Pl.’s Opp’n Br. at 15–16.)
(See
This contact, even if seemingly central
in the statutory scheme for United States institutions receiving
aid, is not dispositive when deciding whether the law applies
extraterritorially.
Morrison noted that most extraterritoriality
disputes will feature defendants with ties to the United States and
8
See Section iv. Anti-Discrimination Statutes and DeVry,
infra, for a discussion of DeVry’s liability.
19
that it would be “a rare case of prohibited extraterritorial
application that lacks all contacts with the territory of the
United States.”
130 S.Ct. at 2884.
There, the Exchange Act
covered “any person” and even referred explicitly to “foreign
commerce,” but the Court nonetheless held that it did not apply
extraterritorially because Congress made no affirmative indication
that such application was intended.
Id. at 2883.
Similarly in EEOC v. Arabian American Oil Co., despite broad
definitions in Title VII for “employer” and “commerce,” the Court
determined that the statute did not contain a clearly expressed,
affirmative intention of Congress that the statute should apply
abroad.
499 U.S. 244, 248 (1991) (“Aramco”).
In Aramco, the
plaintiff was a naturalized American citizen while the defendants
were two Delaware corporations, Arabian American Oil Company
(“AAOC”) and its subsidiary, Aramco Service Company (“ASC”).
at 247.
Id.
AAOC’s principal place of business was in Saudi Arabia,
but it was licensed to do business in Texas, where ASC maintained
its principal place of business.
Id.
The plaintiff complained of
employment discrimination that occurred in Saudi Arabia, where he
worked for AAOC, after he was hired in Texas by ASC.
Id.
After
closely examining Title VII, the Court found no indication that
Congress intended extraterritorial application of the employment
discrimination prohibitions and upheld the lower courts’ entry of
20
judgment for the defendant employers on all of the plaintiff’s
federal claims.
Id. at 259.
After Aramco was decided, Congress amended Title VII to
provide for extraterritorial application, repudiating the Court’s
decision in Aramco.
1077.
See Civil Rights Act of 1991, § 109, 105 Stat.
This amendment explicitly widens the definition of employee:
“[w]ith respect to employment in a foreign country, such term
includes an individual who is a citizen of the United States.”
Id.
It also provides for liability when the discriminating employer is
an American company or controlled by an American company.
Id.
Notably, Congress did not simultaneously (or later, since then)
amend the provisions relating to public accommodations or
commercial facilities.
Compare 42 U.S.C. § 12112(c), with 42
U.S.C. §§ 12181–12189; see also Becky J. Smith, 5 Nat’l Disability
L. Rep. 20 (Dep’t of Justice April 6, 1993).
Only the ADA’s
prohibition on disability discrimination in the employment context
has received an express statement of extraterritorial application
from Congress.
Much like in § 2000e-1 in Aramco and § 30(b) in
Morrison, Congress chose to provide an explicit extraterritorial
statement for only these small parts of a larger whole statute.
499 U.S. at 254–56; 130 S.Ct. at 2882–83.
In examining Aramco, the Court in Morrison noted that neither
hiring on American soil nor the American citizenship of the
plaintiff changed the outcome in Aramco; because Congressional
21
concern in Title VII had been focused on domestic employment, the
statute would not reach extraterritorial employment standards, even
though the facts of the case demonstrated the employment
relationship had some contacts with the United States.
130 S.Ct. at 2884.
Morrison,
From this the Court turned to a textual
analysis of the Exchange Act to determine what actions Congress had
focused its attention on in drafting the Exchange Act, setting
forth the analysis we now follow.
Id.
Looking solely at the text of the RHA, Congress crafted a
statute to protect disabled individuals who are involved with
institutions receiving federal funds.
29 U.S.C. § 794.
The
statute concerns two intertwining policies: protection of disabled
individuals and responsibilities attendant on acceptance of federal
financial aid.
Examining each of these sections reveals that there
is no clear statement that “this law applies abroad.”
Neither are
there indications in the wider context of the statute that Congress
intended the RHA to apply extraterritorially.
The statute does not
indicate that Congress was concerned with more than equality of
domestic educational opportunities.
The portion of the statute directed at protecting disabled
individuals targets discriminatory decision-making.
29 U.S.C. §
794 (prohibiting schools from discriminating against disabled
students by causing that person to “be excluded from the
participation in, be denied the benefits of, or be subjected to
22
discrimination”).
The focus is centered on acts that constitute
exclusionary or accommodating decisions.
Thus, the location of the
actor when such decisions are made is important, not the
citizenship of the person affected by the decision.
The text does
not mention that these protections extend abroad, nor does it
require foreign schools with American students or American-provided
financial assistance to give disabled individuals the same
accommodation.
Congress did not include language or provide
context in the statute to warrant applying the statute
extraterritorially.
The RHA also targets institutions that accepted federal
financial aid.
29 U.S.C. § 794 (prohibiting discrimination against
individuals with disabilities “under any program or activity
receiving Federal financial assistance”).
This portion of the
statute prohibits any programs receiving federal financial aid from
discriminating against disabled individuals.
The statute does not
focus on where the program is located, only on whether it receives
funds.
This also fails to establish an “affirmative intention”
that the RHA applies abroad.
While federal funds are distributed
to many institutions, some of which are beyond the physical
territory of the United States, Congress failed to mention that
these anti-discrimination standards for institutions receiving
assistance were to follow wherever the money went.
Without an
express extension of the statute to foreign institutions receiving
23
federal financial aid, it cannot be implied that Congress actually
intended such extraterritorial application.
The inclusion of “any
program or activity receiving Federal financial assistance” is not
a clear communication indicating that Congress intended foreign
institutions receiving money to also be subject to these
restrictions aimed at equalizing domestic educational,
professional, or social opportunities for disabled individuals
within the United States.
Archut also argues that Ross’s conduct supports extending the
RHA abroad to subject Ross to liability.
15–16, 21–24.)
(See Pl.’s Opp’n Br. at
The language in Ross’s Student Handbook references
the RHA, but does not bind Ross to those laws.
Br. at 21–22.)
(See Pl.’s Opp’n
In support of her argument, Archut’s papers cite a
case from the District of New Jersey, Dean-Hines v. Ross University
School of Veterinary Medicine, No. 05-3486 (Aug. 10, 2006) (dkt.
entry no. 30).
That decision came four years before Morrison and
addressed issues of selecting which state’s substantive law governs
a dispute, forum non conveniens, and contract claim preemption by
NJLAD.
See id. at 5-19.
The Court does not find that this case
supports the proposition that mentioning United States antidiscrimination standards in a student handbook binds a school to
liability if it fails to meet the standards of laws it is not
legally obligated to follow.
See Walton v. Mental Health Ass’n of
Se. Pa., 168 F.3d 661, 671 (3d Cir. 1999) (employer who “exceeded
24
the level that the law required” need not continue providing an
overly burdensome, unreasonable accommodation).
Because the RHA contains no affirmative indication that
Congress intended the law to apply extraterritorially, the Court
concludes that Ross is not liable for any alleged violations of the
statute.
ii.
ADA and Ross
The ADA does not communicate an affirmative intention of
extraterritorial application that would give rise to liability for
acts performed in a foreign country.
Beginning with the text of
the statute before examining the arguments of each party, the Court
concludes that the statute reveals no express communication by
Congress that foreign institutions offering public accommodations
in foreign nations to American citizens are bound to provide
reasonable accommodations to disabled individuals.
Title III of the ADA prohibits discrimination against disabled
individuals in the full and equal enjoyment of public
accommodations and public transportation services.
12182(a), 12184(a).
42 U.S.C. §§
The general prohibitions are supplemented by
more specific requirements. Entities that provide public
accommodations or public transportation: (1) may not impose
“eligibility criteria” that tend to screen out disabled
individuals; (2) must make “reasonable modifications in polices,
practices, or procedures, when such modifications are necessary” to
25
provide disabled individuals with full and equal enjoyment; (3)
must provide auxiliary aids and services to disabled individuals;
and (4) must remove architectural and structural barriers, or if
barrier removal is not readily achievable, must ensure equal access
for disabled individuals through alternative methods.
42 U.S.C. §§
12182(b)(2)(A)(i)-(v), 12184(b)(1), 12184(b)(2)(A)-(C).
These specific requirements are subject to several exceptions
and limitations.
Eligibility criteria that screen out disabled
individuals are permitted when “necessary for the provision” of the
services or facilities being offered.
12182(b)(2)(A)(i), 12184(b)(1).
42 U.S.C. §§
Policies, practices, and
procedures need not be modified, and auxiliary aids need not be
provided, if doing so would “fundamentally alter” the services or
accommodations being offered.
(iii).
42 U.S.C. §§ 12182(b)(2)(A)(ii)-
Auxiliary aids are also unnecessary when they would “result
in an undue burden.”
42 U.S.C. § 12182(b)(2)(A)(iii).
The
barrier removal and alternative access requirements do not apply
when these requirements are not “readily achievable.”
42 U.S.C. §§
12182(b)(2)(A)(iv)-(v).
A “post graduate private school or other place of education”
is included among the defined types of private entities that are
considered “public accommodations,” and therefore are subject to
the prohibition on discrimination, if certain conditions are met.
42 U.S.C. § 12181(7)(J).
The private entities must be engaged in
26
operations that affect commerce to be considered public
accommodations.
42 U.S.C. § 12181(7).
Commerce is defined as
“travel, trade, traffic, commerce, transportation, or communication
(A) among the several States; (B) between any foreign country or
any territory or possession and any State; or (C) between points in
the same State but through another State or foreign country.”
42
U.S.C. § 12181(1).
Following the analysis set forth in Morrison, we observe that
this statute contains no clear expression of extraterritorial
application of the anti-discrimination standards to foreign
institutions.
The text of the statute provides no indication
Congress intended to provide extraterritorial application of these
standards to foreign institutions offering public accommodations or
public transportation.
Moreover, in this piece of legislation,
Congress sought to reduce physical or other barriers to sites where
disabled individuals need access.
This focus is presumed to be
domestic, as no indication exists in the text of the statute to
suggest otherwise.
This statute is narrowly addressed to the
domestic issue of providing access for disabled United States
citizens.
It would be contrary to the rationale of the presumption
against extraterritoriality to interpret the text so as to require
foreign institutions to adhere to United States standards for
barrier removal and reasonable accommodations.
27
As the Court explained in Morrison, such a broad
interpretation should be rejected because “[t]he probability of
incompatibility with the applicable laws of other countries is so
obvious that if Congress intended such foreign application it would
have addressed the subject of conflicts with foreign laws and
procedures.”
130 S.Ct. at 2885 (citation and internal quotation
marks omitted).
If Congress had intended its law concerning
building or safety codes to supplant or conflict with the law of
foreign nations, then it would have dictated such results in the
legislation that called for those responses.
Where such
extraterritorial applications have not been addressed by Congress
in the text of the statute or clear contextual sources, they should
not be imputed by courts’ supposition.
We conclude that the requirements of the ADA with respect to
institutions offering public accommodations do not apply
extraterritorially to require foreign institutions to provide
reasonable accommodations to American citizens with disabilities.
Accordingly, Archut cannot prevail on such a claim against Ross.
iii. NJLAD and Ross
The NJLAD does not apply extraterritorially to conduct in
other states, nor to conduct occurring in foreign nations.
Although the statute is most frequently analyzed in the context of
employment discrimination disputes, the analysis is similar to that
required here.
28
New Jersey courts have consistently applied the NJLAD only if
the claimant was discriminated against during employment in the
state.
See Weinberg v. Interep Corp., No. 05-5458, 2006 WL
1096908, at *6–7 (D.N.J. Apr. 26, 2006) (dismissing NJLAD claim
where New Jersey citizen was employed by a New York company in its
Pennsylvania office and low percentage of plaintiff’s sales were to
New Jersey client).
The restriction on extraterritorial
application of the NJLAD derives from the well-settled principle
that “New Jersey law regulates conduct in New Jersey, not outside
the state.”
Buccilli v. Timby, Brown & Timby, 283 N.J.Super. 6, 10
(App. Div. 1995).
This limitation has been repeatedly exercised in
cases brought by current residents and out-of-state plaintiffs
against out-of-state employers, with courts consistently holding
that the claim was governed by the law of the state where the
conduct occurred.
See id.; see also Peikin v. Kimmel & Silverman,
P.C., 576 F.Supp.2d 654, 657 (D.N.J. 2008) (listing cases).
A similar limitation prevents Archut from prevailing on her
NJLAD claim here.
Any allegedly discriminatory conduct which
Archut claims harmed her occurred through the decision-making
process in St. Kitts, where Archut attended school.
These out-of-
state acts are beyond the internal focus of the New Jersey
legislature in enacting the NJLAD and cannot be the predicate for
liability against Ross.
The NJLAD does not apply to conduct
occurring in other states because the legislature did not so
29
provide; similarly, conduct occurring in foreign nations is also
beyond the reach of the statute.
iv.
Anti-Discrimination Statutes and DeVry
DeVry is not liable under the RHA, ADA, or NJLAD for the
actions of Ross’s administrators in St. Kitts with respect to
Archut.
Although DeVry was an educational institution within the
United States throughout the time period applicable, the statutes
under which Archut brought her claims do not contain provisions
holding parent companies liable for actions of their foreign
subsidiaries.
To hold DeVry liable for Ross’s actions in St. Kitts through
piercing the corporate veil would require some demonstration of
fraud or misuse of corporate formalities:
New Jersey recognizes the fundamental propositions that a
corporation is a separate entity from its shareholders, and
that a primary reason for incorporation is the insulation of
shareholders from the liabilities of the corporate enterprise;
accordingly, except in cases of fraud, injustice, or the like,
courts will not pierce a corporate veil.
Hottenstein v. City of Sea Isle City, 793 F.Supp.2d 688, 691
(D.N.J. 2011) (internal citation and quotation marks omitted).
Archut, however, did not plead any facts or present any evidence of
fraud or injustice that would support piercing the veil to hold
DeVry liable for the acts of its subsidiary with respect to the RHA
or NJLAD.
30
As noted by Defendants in their reply brief, only the
employment standards in Title VII of the ADA provide liability for
companies that “control” foreign corporations that discriminate.
(See dkt. entry no. 40, Defs.’ Reply Mem. in Further Supp. of Mot.
for Summ. J. at 3 (hereinafter “Defs.’ Reply”).)
§ 12112(c), with 42 U.S.C. §§ 12181–12189.
Compare 42 U.S.C.
Archut has not
presented evidence that DeVry exerted such control over Ross.
Even
if such evidence were presented to the Court, it could not create
liability for Ross or DeVry because Congress did not also amend the
public accommodations provisions of the ADA to provide for
liability against the companies controlling discriminatory foreign
institutions that fail to follow the standards set out in Sections
12181 through 12189.
Archut has not presented a theory of direct liability under
the anti-discrimination statutes against DeVry.
Archut also has
not demonstrated that DeVry is liable under any theory except that
of alleged control over Ross, which is not viable under these
statutes.
Archut’s claims under the anti-discrimination statutes
against DeVry fail entirely because the statutes do not create
liability for companies controlling foreign institutions that
violate the public accommodation standards of the ADA, RHA, or
NJLAD.
Thus, DeVry is also not liable to Archut under the ADA,
RHA, or NJLAD.
31
B.
Jurisdiction
Upon granting summary judgment in favor of Defendants on the
federal claims, the Court questions its jurisdiction in this case.
The Court notes that “[a] district court may decline to exercise
supplemental jurisdiction over a claim if ‘the district court has
dismissed all claims over which it has original jurisdiction.’”
Oras v. City of Jersey City, 328 Fed.Appx. 772, 775 (3d Cir. 2009)
(quoting 28 U.S.C. § 1367(c)(3)).
[W]here the claim over which the district court has
original jurisdiction is dismissed before trial, the
district court must decline to decide the pendent state
claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an
affirmative justification for doing so.
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000).
Archut brought this action in federal court premised on the
Court’s federal question jurisdiction over the RHA and ADA claims
and supplemental jurisdiction under Section 1367 over the remaining
state law claims.
28 U.S.C. § 1331; 28 U.S.C. § 1367; (See dkt.
entry no. 1, Compl. at ¶ 1.).
Although Archut did not plead
jurisdiction under Section 1332, it appears from the allegations in
the Complaint that diversity may exist as a secondary basis for the
Court’s jurisdiction in this case.
Carolina.
(Compl. at ¶ 2.)
foreign citizen.
Archut is a citizen of North
It appears that Ross is deemed to be a
(See Defs.’ Mem. at 12-13; see also Defs.’
Statement at ¶¶ 1-5.)
DeVry is a Delaware corporation, maintaining
32
its principal offices in Illinois.
(Compl. at ¶ 4.)
Archut seeks
compensatory and punitive damages for her injuries, but fails to
provide any monetary amount of loss.
(Compl. at ¶ 74.)
Thus, the
Court cannot determine whether the amount in controversy
requirement has been satisfied.
See 28 U.S.C. § 1332.
The Court will deny the motion for summary judgment with
respect to the breach of contract claims until such time as the
parties fully address the jurisdictional issue under Section 1332.9
Should the Court determine that Archut cannot satisfy the amount in
controversy requirement, the Court will decline to exercise
supplemental jurisdiction, and dismiss the claims without prejudice
and with leave to bring those claims in state court.
The Court
offers no opinion on the merits or the viability of those claims.
9
Should the parties satisfy the Court that jurisdiction under
Section 1332 exists, the parties would then need to address which
law governs the contract claims: state law or the common law of St.
Kitts. (Compare Pl.’s Opp’n Br. at 37, with Defs.’ Mem. at 38–39.)
A court sitting in diversity applies the forum state’s choice of
law rules — here, New Jersey. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941). In making a choice-of-law
determination for a breach-of-contract claim, New Jersey courts ask
which forum has the most significant relationship with the parties
and the contract. See State Farm Mut. Auto. Ins. Co. v. Estate of
Simmons, 84 N.J. 28, 417 A.2d 488, 491-92 (1980); Keil v. Nat’l
Westminster Bank, 311 N.J.Super. 473, 710 A.2d 563, 569-70
(App.Div. 1998). If the Court determines that the law of St. Kitts
governs the contract dispute, the breach of contract claim may yet
be subject to dismissal under the doctrine of forum non conveniens.
See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981).
33
III. CONCLUSION
For the reasons stated supra, the Court will grant Defendants’
motion for summary judgment in part and deny it in part.
The Court
will issue an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: November 19, 2012
34
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