DATTO, Ph.D v. THOMAS JEFFERSON UNIVERSITY et al

Filing 12

MEMORANDUM SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 9/9/09. 9/11/09 ENTERED AND COPIES E-MAILED.(ah)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JEFFREY P. DATTO, Ph.D. : CIVIL ACTION : v. : : BRIAN HARRISON, et al. : NO. 09-2064 ________________________________________________ JEFFREY P. DATTO, Ph.D. v. THOMAS JEFFERSON UNIVERSITY, et al. : : : : : : MEMORANDUM McLaughlin, J. September 9, 2009 CIVIL ACTION

NO. 09-2549

The two above-captioned actions arise from the dismissal of plaintiff Jeffrey P. Datto, Ph.D. ("Datto") from the M.D./Ph.D. program of Thomas Jefferson University. Datto alleges

that his dismissal was the result of disability discrimination or retaliation or retaliation for his complaints about patient care. The two suits have a complicated procedural history and both raise similar claims. The defendants in each action, who are

represented by common counsel, have filed motions to dismiss. For reasons explained below, the Court will refer to Case No. 092064 as "Datto III" and Case No. 09-2549 as "Datto I".

The motion filed in Datto III seeks to dismiss all claims. The motion filed in Datto I seeks to dismiss Counts Four

and Six through Twelve of the operative complaint, which bring claims under the Americans with Disabilities Act ("ADA"), the

Rehabilitation Act, the Pennsylvania Human Relations Act ("PHRA"), the Pennsylvania Fair Educational Opportunities Act ("PFEOA"), and state law claims for wrongful termination. For the reasons that follow, the Court will dismiss the plaintiff's ADA and Rehabilitation Act claims in both cases to the extent they concern the defendants' decision to dismiss the plaintiff from the Jefferson M.D./Pd.D. program, but will not dismiss those claims to the extent they concern the defendants' alleged refusal to readmit him to that program. The Court will

also dismiss the plaintiff's Rehabilitation Act claims for retaliation against the individual defendants in both cases, but will not dismiss those claims under the ADA. The Court will also

dismiss the plaintiff's PHRA and PFEOA claims in both cases and the plaintiff's wrongful termination claim in Datto I.

I.

The Procedural History of the Claims A. Datto I The plaintiff began the first of these actions, Datto

I, by filing a praecipe for a writ of summons, pro se, in the Philadelphia Court of Common Pleas on July 11, 2007. The

plaintiff subsequently filed a complaint and amended it three times in state court. The plaintiffs' initial complaint and his The

first two amended complaints brought only state law claims.

plaintiff's third amended complaint, filed April 21, 2008, after the plaintiff had obtained counsel, for the first time included a -2-

federal claim, alleging a claim under the ADA.

The defendant

timely removed Datto I to this Court, where it was docketed as Case No. 08-2154. The defendants filed a motion in this Court to dismiss Datto I. The plaintiff opposed the motion and moved to amend the

complaint for the fourth time to add another federal claim under the Rehabilitation Act. While these motions were pending, Datto

requested that the case be stayed to allow him to obtain new counsel. The Court granted the stay, but Datto was unable to

obtain new counsel and his current counsel moved to withdraw. While the defendants' motion to dismiss and the plaintiff's counsel's motion to withdraw were pending, the plaintiff filed a motion asking the Court to "exercise supplemental jurisdiction or in the alternative remand." In the

motion, the plaintiff explained that, after Datto I had been removed to federal court, he had filed two new related suits in state court, Datto II, a medical malpractice action concerning treatment he received while in the Jefferson M.D./Ph.D. program, and Datto III, a substantively identical action to Datto I challenging his dismissal from the M.D./Ph.D. program. The

plaintiff's motion to exercise supplemental jurisdiction or remand sought to have all three actions tried in the same forum and stated that the plaintiff was willing to dismiss his ADA claim in Datto I and have the action remanded to state court where it could be coordinated with Datto II and Datto III. -3-

The Court granted the plaintiff's motion on March 3, 2009, allowing him to dismiss his federal claim without prejudice, and granted his counsel's motion to withdraw. Court declined to exercise pendent jurisdiction over the remaining state law claims and remanded them to state court. The The

Court found that the interests of judicial economy and fairness to the parties were best served by having all of the plaintiff's claims brought together in one forum to avoid duplicative litigation. Although the Court recognized that the plaintiff

could seek to amend his complaint to re-assert federal claims in state court after remand, which would allow the defendants to again remove, it reasoned that this possibility, while real, was speculative because the plaintiff had not stated that he intended to seek to re-plead his federal claims and any amendment would require leave of court. Once the case was remanded, the plaintiff moved in state court to again amend his complaint to add federal claims under the ADA, the Rehabilitation Act and the 14th Amendment to the United States Constitution. to amend on April 22, 2009. The plaintiff filed the motion

The defendants filed a notice of

removal on May 1, 2009, before the motion had been ruled upon. Upon removal, the case was docketed as Case No. 09-1873. Because

the defendants had removed the case before the plaintiff's motion to amend had been granted, the Court remanded the case sua sponte

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as prematurely removed, finding that, until amended, the operative complaint contained no federal claim allowing removal. After remand, the defendants did not oppose the plaintiff's motion to amend, and the state court granted the motion on May 11, 2009. On May 22, 2009, the plaintiff filed his

fourth amended complaint containing federal claims under the ADA, the Rehabilitation Act, and the Fourteenth Amendment, and the defendants again filed a notice of removal to this Court, where it has been docketed as Case No. 09-2549. The operative fourth amended complaint in Datto I names as defendants Thomas Jefferson University ("Jefferson") and eleven individuals who are either Jefferson employees or administrators.1 It brings state law claims for breach of

contract (Counts I, II, and III); wrongful termination (Count IV); intentional infliction of emotional distress and intentional interference with contract (Count V); violations of the PHRA (Count XI); and violations of the PFEOA (Count XII). It brings

federal claims under the ADA (Counts VI, VII, and VIII), the Rehabilitation Act (Counts IX and X), and the Fourteenth Amendment to the United States Constitution (Count XIII).

The individual defendants in Datto I are Arthur M. Feldman, M.D., Ph.D.; Thomas J. Nasca, M.D.; Mark G. Graham, M.D.; John W. Caruso, M.D.; Charles A. Pohl, M.D.; James A. Fink, M.D.; Nora Sandorfi, M.D.; Thomas Klein, M.D.; Clara Callahan, M.D.; Robert L. Barchi, M.D., Ph.D., Brian Harrison, and four John Doe defendants. -5-

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B.

Datto II The action referred to as Datto II is a state law

medical malpractice action pending in the Court of Common Pleas of Philadelphia: Datto v. Thomas Jefferson University, et al., According to the

Phila. C.C.P., December Term 2007, No. 5181.

state court docket in the case, it was filed on or about January 4, 2008, by writ of summons. The parties have represented that

the case concerns Datto's medical treatment by Thomas Jefferson University and others while enrolled in the M.D./Ph.D. program. Because Datto II brings only state law causes of action, it has not been removed to this Court.

C.

Datto III

Datto III was initiated by a praecipe for writ of summons filed in the Court of Common Pleas of Philadelphia County on October 10, 2008. On February 2, 2009, defendant Thomas

Jefferson University Hospital filed a rule to require the plaintiff to file a complaint, which the plaintiff filed on April 22, 2009. Like Datto I, the complaint in Datto III challenges

the plaintiff's dismissal from Thomas Jefferson University's M.D./Ph.D. program and brings both state and federal claims. The

defendants removed Datto III to this Court on May 13, 2009, where it has been docketed as Case No. 09-2064. The complaint in Datto III names as defendants Thomas Jefferson University, Thomas Jefferson University Hospitals, Inc. -6-

("Jefferson Hospital"), and four individuals who are either Jefferson employees or administrators.2 It brings claims for

violations of the ADA (Counts I, II, and III); the Rehabilitation Act (Count IV and V); the PHRA (Count VI); and the PFEOA (Count VII).

. D

Consolidation of Datto I and Datto III Datto I and Datto III were removed to this Court on May

22 and May 13, 2009, respectively.

After removal, the defendants

filed motions to dismiss in both cases, and the plaintiff filed a motion for a preliminary injunction. At the plaintiff's request,

which the defendants did not oppose, the Court consolidated Datto I and Datto III for all purposes and set a briefing schedule on the pending motions. In the consolidation order, the Court

stated that, once the motions were fully briefed, it would review them before scheduling a hearing on the preliminary injunction motion. Both parties have also moved simultaneously in this Court and in state court to coordinate discovery in Datto I, Datto II, and Datto III. The parties stipulated to the

The individual defendants in Datto III are Brian Harrison, Thomas Lewis, Thomas Klein, M.D., and Mark Graham, M.D. Five John Doe defendants are also named. Of these individual defendants, Harrison, Klein and Graham are also named as defendants in Datto I; Lewis is not. -7-

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appointment of a discovery matter in all three cases, to be selected by the Court.

II.

The Allegations of the Complaint The operative complaints in Datto I and Datto III

concern the same events, but the allegations in Datto I are far more detailed. The Court will set out the allegations of each

complaint separately.

A.

The Allegations of the Datto I Complaint In June of 1996, the plaintiff submitted an application

for the combined M.D./Ph.D. program (the "program") at Jefferson. The program consisted of two pre-clinical years of medical school, followed by three or more years of graduate research leading to a doctoral dissertation. In choosing to apply to the

program, the plaintiff relied on publications from Jefferson which described it as giving participants three years to complete their Ph.D. thesis research. Datto I Compl. at ¶¶ 19, 22-23, 25.

In December 1997, the plaintiff was notified that he had been accepted into the program as an early decision applicant. That same month, the plaintiff was told by Jefferson

officials that the university was not likely to be able to offer him a scholarship because anticipated government funding would likely not be available. The plaintiff communicated with

Jefferson officials from January through May 1998 concerning his -8-

expectations of a scholarship and what he alleges was Jefferson's promise to provide one. Datto I Compl. at ¶¶ 26-30.

On June 2, 1998, Jefferson agreed to fund the plaintiff's entire M.D./Ph.D. education. Because Jefferson

provided funds for the plaintiff, it was unable to fund planned scholarships for other students. The plaintiff alleges that this

caused significant ill will towards him from Jefferson officials. Datto I Compl. at ¶¶ 31-32. The plaintiff did well academically in his first two years of medical school and in September of 2000 completed the first part of the medical licencing exam in the top 12% of students nationwide. In September 2001, the plaintiff applied

for an National Institute of Health ("NIH") grant with the assistance of Jefferson employees. The NIH awarded Jefferson and

the plaintiff the grant in February 2002 and the plaintiff became the principal investigator. Datto I Compl. at ¶¶ 33-36.

In spring or summer of 2002, several faculty members, including Dr. Matthew During, the plaintiff's thesis advisor, left Jefferson. In addition, the Jefferson CNS Gene Therapy Although

Center, in which the plaintiff worked, was shut down.

the plaintiff had been working on his research for two years and had not yet written his thesis or had his research published, Dr. Charles Pohl, Dean of Student Affairs, encouraged the plaintiff to return to medical school. Datto I Compl. at ¶¶ 37-40.

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In September 2002, Jefferson sent a letter to the NIH Program Director suggesting that Dr. Irving Shapiro, Director of the Jefferson Cell and Tissue Engineering Program, could become the plaintiff's new "NRSA mentor," replacing Dr. During. The

letter stated that Dr. During would continue to "advise the student scientifically and participate in the preparation" of the plaintiff's thesis and help him publish his researching findings. The letter also said that other members of the plaintiff's committee would work with him to facilitate completion of his thesis research and in the construction of his dissertation. Datto I Compl. at ¶ 41; Ex. E. The plaintiff returned to medical school and obtained good to excellent grades. At this time, the plaintiff was also

working to complete his thesis, which limited the time he could devote to his medical school studies. In completing his thesis,

the plaintiff did not receive the promised help from his former thesis advisor, Dr. During, or from members of his committee. Datto I Compl. at ¶¶ 42-44. In January 2004, the plaintiff defended his Ph.D. thesis. The plaintiff's thesis committee expressed concerns that A

his thesis needed significant work to ensure publication.

month before his thesis defense, knowing the thesis still needed significant work, the plaintiff had asked Jefferson for a third year of graduate support to allow him to complete it. After his

defense, the plaintiff approached Dr. Pohl, Dean of Student -10-

Affairs, to express concerns about his workload and to again request funding for a third year of graduate studies. Jefferson

denied the plaintiff's request for a third year of funding. Datto I Compl. at ¶¶ 46-49. Jefferson's refusal to fund his third year of studies and his workload from simultaneously completing both his medical school studies and his Ph.D. thesis, put the plaintiff under a great deal of stress. The plaintiff began seeing Dr. James

Youakim, the Jefferson psychiatrist assigned to treat medical students, who prescribed the plaintiff several psychiatric medications including Lithium and Zyprexa. While on the

medication prescribed by Dr. Youakim, the plaintiff experienced significant side-effects, including a severe tremor, neurologic side effects, weight gain, memory loss, slowness of thought, apathy, and cognitive dysfunction. Datto I Compl. at ¶¶ 50-52.

In April 2004, the plaintiff was given a grade of "Marginal Competence" from Dr. Mark Graham in one of his courses. At this time, Dr. Graham expressed concern that the plaintiff was exhibiting memory problems and visible shaking that Dr. Graham attributed to anxiety. Dr. Graham did not review his grade with

the plaintiff, as required by the Jefferson student handbook, and did not question him about the cause of his shaking. Compl. at ¶¶ 54-56. In May 2004, the plaintiff was placed on a mandatory leave of absence. The plaintiff met with the Jefferson Committee -11Datto I

on Student Promotions and told them that his shaking and tremors had been caused by the side-effects of his medication. The

plaintiff did not tell the Committee that his cognitive problems were being caused by his medications, because he had been told by his psychiatrist, Dr. Youakim, that these problems were caused by bipolar disorder and attention deficit hyperactivity disorder. The plaintiff requested that the Committee remove references to his anxiety from his "Dean's Letter" concerning his mandatory leave, but the Committee and Dr. Pohl, Dean of Student Affairs, refused. Datto I Compl. at ¶¶ 57-63. After the mandatory leave ended, the plaintiff returned to medical school. In April 2005, during the plaintiff's

penultimate rotation of the year, in rheumatology, the plaintiff took a history from a patient who had been wrongly given an injection of the anti-nausea medication Phenergen interarterially instead of intravenously. The improper injection

caused the patient great pain, cyanosis, and shriveling and eventual amputation of the injected limb. The plaintiff noted

the error in the patient's chart and was reprimanded by the plaintiff's rotation supervisor, Dr. Sandorfi, who attempted to remove the notes and indicated that he should not report such incidents. Datto I Compl. at ¶¶ 64-69. The plaintiff then went to the Jefferson Ethics Committee and voiced concerns about the incident. Dr. Sandorfi

and others told the Ethics Committee that they had informed the -12-

patient of the medical error that led to her amputation.

The

plaintiff learned from other students that Dr. Sandorfi was very angry at him for making a report to the Ethics Committee. The

plaintiff alleges that he later learned that he was the only doctor to inform the patient that her amputation was caused by a medical error, and that other doctors had told the patient that the plaintiff was "crazy" and that the cause of her amputation was her diabetes. The plaintiff also learned that the patient

was not told she might need a second amputation, which was a possible complication of her condition. 73. After this incident, which occurred in the plaintiff's penultimate rotation, the plaintiff received a failing grade in his next rotation. his graduation. This was the plaintiff's last rotation before Datto I Compl. at ¶¶ 70-

The plaintiff was given a grade of marginal

competence by the attending and resident on the rotation, but this was changed to a failing grade by Dr. Arthur Feldman, the Chairman of Medicine. The plaintiff alleges that Dr. Feldman had

been tasked by the Ethics Committee with contacting the improperly-injected patient about whom the plaintiff had complained and that Dr. Feldman was unhappy about this. Compl. at ¶¶ 76-77, 85-87. The plaintiff alleges that the supervisors on this rotation did not fulfill the responsibilities set out in the rotation's course description. The resident on the rotation did -13Datto I

not review each patient's history with the plaintiff or provide face-to-face feedback and the attending physician did not provide the plaintiff with "remediation or assistance," as they were required to do in the course description. The plaintiff alleges

that, had they done so, the attending and the resident could have worked with his psychiatrist to identify and correct his deficiencies, which he contends were caused by his medications. Datto I Compl. at ¶¶ 78-84. Because the plaintiff failed a rotation, he was dismissed from Jefferson's M.D./Ph.D. program. Although the

complaint does not specifically allege the date of the plaintiff's dismissal, the plaintiff has attached to his complaint a letter to him from Jefferson, dated May 31, 2005, informing him of his dismissal. The letter states that the

Jefferson Committee on Student Promotion had reviewed his failing grade and was "sorry to inform you that the Committee has decided that your status at Jefferson Medical College has been officially terminated." It states he is being "given an Academic Dismissal

based on a consistent inability to achieve a satisfactory academic record." The letter also informs the plaintiff that he Compl. Ex. FF.

has the right to appeal this decision.

The plaintiff filed an appeal from his dismissal. During his appeal, the plaintiff says he protested his dismissal, "raised violations" of the ADA, and "demanded" accommodations. The plaintiff states that he was told by Dr. Bernard Lopez, -14-

Assistant Dean of Student Affairs and Career Counseling, that during the appeals process, Jefferson still considered him to be a student.3 Datto I Compl. at ¶¶ 92, 94-96.

In a letter dated July 20, 2005, and attached to the plaintiff's complaint, Dr. Lopez formally informed the plaintiff of the result of his appeal. The July 20, 2005, letter begins by

stating that the plaintiff's "dismissal from Jefferson was not rescinded during the entire appeal process" and that "[y]our status remains that you are dismissed." It states that the

Committee on Student Promotions has determined that "the dismissal would be reconsidered if the following 3 conditions are met." These conditions are: ) 1 That the plaintiff have an independent psychiatric evaluation that finds him to be "medically and psychiatrically stable to resume" his medical studies; ) 2 That he enter in to a contract with the "Physicians Health Program" and submit a copy of the contract to the Committee; and

The plaintiff has attached to his brief in opposition to the motion to dismiss several emails that the plaintiff received from Dr. Lopez while his appeal was pending. In these emails, Dr. Lopez describes the decision to be made on appeal as whether to "maintain his dismissal" and, in an email sent after his appeal was determined, tells the plaintiff that Jefferson considered him to be a student during the pendency of his appeal. Pl. Br. at Ex. C. -15-

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That he agree to have his dean's letter modified to include his diagnosis of bipolar disorder and the accommodations that he requested to keep it under control.

The letter states that, if he meets these three conditions, "the Committee will rescind your dismissal and will prepare a remediation plan" for him to follow. Datto I Compl. at Ex. I.4

The plaintiff received a second letter setting forth these conditions, although phrasing them slightly differently, on July 21, 2005, from the Chairman of the Committee on Student Promotion. This letter stated that upon "completion of these

requirements, the Committee will then reconsider its previous decision of Academic Dismissal." The plaintiff requested a

clarification of this wording in an email to Dr. Lopez on July 27, 2005, who replied that the language was "simply the wording of the language that was chosen" and that "[i]f you are successful with meeting the conditions, your dismissal will be revisited and you will be reinstated." The plaintiff then signed

In his opposition to the motion to dismiss, the plaintiff states that Jefferson's decision to deny his appeal was made at a meeting of the Committee on Student Promotion on July 12, 2005. This fact is not alleged in the plaintiff's complaint. The plaintiff, however, has attached to his complaint an email exchange between him and Dr. Lopez on July 13, 2005, which discusses the three conditions later memorialized in Dr. Lopez's letter of July 20, 2005. In the exchange, Dr. Lopez writes, "Keep in mind until the three conditions are met, your status remains that you are academically dismissed." Compl. Ex. Z. -16-

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the letter of July 21, 2005, and returned it to Jefferson. I Compl. at ¶¶ 98-101, Ex. J, K.

Datto

The plaintiff changed healthcare providers after his dismissal. These doctors determined that the medication he had

been prescribed was causing his cognitive impairments. After the plaintiff stopped taking his medication, he experienced "withdraw/rebound" effects that caused him to become highly emotional and manic and to suffer hallucinations. effects subsided over time. suffered economic hardship. These

During this time, the plaintiff Datto I Compl. at ¶¶ 103, 108-113.

The plaintiff alleges that, as part of his doctors' attempt to diagnose his condition, they asked to review emails from the plaintiff's Jefferson email account, which Jefferson would not allow. On June 29, 2006, the plaintiff sent an email

to fifteen Jefferson employees complaining of being denied access to his emails and threatening to file complaints about Jefferson's actions with the governor's office, the attorney general, and the departments of education and justice. Compl. at ¶¶ 104-05, Ex. M. The plaintiff sent another email on September 4, 2006, to the program directors and chairmen of Jefferson, the University of Pittsburgh Medical Center and Northwestern Medical Center, copying three malpractice attorneys and officials of the NIH and Office of the Inspector General, among others. The email Datto I

stated that he had personal knowledge that certain unnamed -17-

residents, fellows, and recent graduates of the three institutions were "long standing" drug users and/or had been at a party where drugs were used. The email stated that the plaintiff

believed drug use was a wide-spread problem at these institutions and that he was requesting that they conduct "a mandatory drug screen this week of all your faculty to verify the veracity" of his claims. Datto I Compl. at ¶¶ 104, Ex. N.

In October 2006, Jefferson "attempted to revoke the promised accommodation" of reinstating him once he had been medically and psychiatrically cleared. The plaintiff states that

he has been cleared to return to Jefferson and has attached to his complaint several letters and reports from physicians stating that he can return to school. He states that Jefferson refuses

to "engage in any interactive process" with him and continues to deny him the opportunity to complete his studies. He also states

that he has been unable to enter any other medical program in the United States or Canada. P-U. Datto I Compl. at ¶¶ 107, 114-117, Ex.

B.

The Allegations of the Datto III Complaint The complaint in Datto III is far more skeletal than

that in Datto I. III complaint are:

In their entirety, the allegations of the Datto

The plaintiff was a Jefferson M.D./Ph.D. student. While he was at Jefferson, a Jefferson student suffering from -18-

bipolar disorder killed another student.

The plaintiff alleges

that the defendants perceive him as suffering from bipolar disorder. The plaintiff also alleges that he suffers from a

learning disability, for which the plaintiff requested accommodations from Jefferson. Datto III Compl. at ¶¶ 13-17.

The defendants approved the plaintiff's request for accommodations and said he would be given the opportunity to finish his medical studies at Jefferson once he was physically and mentally cleared to do so. When the defendants did "not

appropriately engag[e] with him in an interactive process about this accommodation," the plaintiff threatened to file a complaint. After this threat, the defendants attempted to

rescind their previously approved accommodation of allowing him to finish his degree once medically cleared. The plaintiff

alleges that the defendants feared him because of his perceived bipolar disorder. Datto III Compl. at ¶¶ 18-21.

The plaintiff is now free of psychiatric medication and his previous cognitive problems have resolved. He has obtained

clearance from a number of physicians that he is psychiatrically stable and there is no reason he cannot return to school. defendants are refusing to engage with him and allow him to return, and no other medical program in the United States or Canada has accepted him. Datto III Compl. at ¶¶ 22-25. The

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III. Analysis The defendants in Datto I and Datto III have moved in both cases to dismiss the plaintiff's claims under the ADA, the Rehabilitation Act, the PHRA, and the PFEOA. The defendants have

also moved to dismiss the plaintiff's wrongful termination claims in Datto I. If granted in their entirety the motions would

dismiss all claims in Datto III, but leave claims in Datto I for breach of contract, intentional infliction of emotional distress, intentional interference with contract, and federal claims under the Fourteenth Amendment.

A.

The ADA and Rehabilitation Act Claims The defendants in both Datto I and Datto III seek to

dismiss the plaintiff's ADA and Rehabilitation Act claims.

In

both Datto I and Datto III, the plaintiff brings ADA claims under Title II (discrimination by a public entity ), Title III (public accommodation discrimination), and Title IV (retaliation), 42 U.S.C. § 12131 et seq., § 12181 et seq., and § 12203. The

plaintiff brings Rehabilitation Act claims under section 505, codified at 29 U.S.C. § 794, which forbids disability discrimination in any program receiving federal assistance, and 34 C.F.R. § 100.7(e), which forbids retaliation for exercising rights under the Act. The plaintiff brings his retaliation

claims under the ADA and the Rehabilitation Act against all

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defendants.

He brings his other ADA and Rehabilitation Act

claims only against Jefferson and Jefferson Hospital. Because the defendants raise separate arguments in Datto I and Datto III for dismissal of these claims, the Court will address each case separately.

1.

Datto I

The defendants contend that the plaintiff's ADA and Rehabilitation Act claims in Datto I are time-barred. In the

alternative they argue that the plaintiff's retaliation claims against the individual defendants must be dismissed because neither statute provides for such liability.

a.

Statute of Limitations

Although the statute of limitations is an affirmative defense, it may be raised in a motion to dismiss where the plaintiff's failure to comply with the limitations period is apparent from the face of the pleadings. In evaluating the

statute of limitations on a motion to dismiss, a court is limited to the allegations of the complaint, the exhibits attached to the complaint, and matters of public record. Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1, n.2 (3d Cir. 1994). A court must accept the factual allegations of the

complaint as true, but need not accept as true legal conclusions

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couched as factual allegations. 1937, 1950 (U.S. 2009).

Ashcroft v. Iqbal, 129 S. Ct.

The statute of limitations for the plaintiff's ADA and Rehabilitation Act claims is two years. Because neither the ADA

nor the Rehabilitation Act contains an express limitation period, their statute of limitations is determined by looking to the limitations period for the most analogous cause of action in the state in which it sits. For the plaintiff's claims under the ADA

and the Rehabilitation Act, this is Pennsylvania's two-year limitations period for personal injury actions. Disabled in

Action of Pa. v. S.E. Pa. Trans. Auth., 539 F.3d 199, 208 (3d Cir. 2008) (upholding application of Pennsylvania's personal injury limitations period to claims under ADA Title II and § 505 of the Rehabilitation Act); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996) (upholding application of state law personal injury statute of limitations to claim under ADA Title III). The plaintiff began Datto I by filing a praecipe in state court asking for the issuance of a writ of summons on July 11, 2007.5 Under Pennsylvania procedure, the filing of such a

In some portions of the defendants' brief in support of its motion to dismiss Datto I, the defendants state that the plaintiff filed the praecipe in Datto I on July 11, 2007; in other portions of the brief, the defendants give the date as June 11, 2007. A review of the state court docket shows the praecipe was filed July 11, 2007. -22-

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praecipe is sufficient to commence a lawsuit for purposes of tolling the statute of limitations.6 Pa. R. Civ. P. 1007.

Datto I having been filed on July 11, 2007, the plaintiff's ADA and Rehabilitation Act claims will be time-barred if they accrued before July 11, 2005. The defendants contend

that the plaintiff's claims accrued when Jefferson notified him that he was dismissed, in a letter dated May 31, 2005. The

plaintiff contends that his claims accrued, at the earliest, when he learned that his appeal of the dismissal was denied, which the plaintiff states that he knew on July 12, 2005, but which the documents attached to his complaint indicate occurred on July 13 or July 20, 2005.7 The plaintiff also contends that his claims

Under Pennsylvania law, although an action can be begun by filing a praecipe for a writ of summons, doing so will only toll the statute of limitations if the plaintiff makes a "good-faith effort to effectuate notice" that the suit has begun. McCreesh v. City of Phila., 888 A.2d 664, 666-67 (Pa. 2005). Lack of good faith, however, can only be found where "plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs' failure to comply with the Rules of Civil Procedure has prejudiced defendant." Id. at 674. To make such a finding, evidentiary determinations are usually required. See Farinacci v. Beaver Cty. Indus. Dev. Auth., 511 A.2d 757, 759 (Pa. 1986). The defendants have not alleged such a lack of good faith by the plaintiff and concede in their motions that the plaintiff's filing of the praecipes for writs of summons tolled the statute of limitations in both cases. In the brief in opposition to the motion to dismiss, the plaintiff states that he learned that his appeal had been denied on July 12, 2005. Although this date is not alleged in his complaint, a July 13, 2005, email exchange between the plaintiff and Dr. Lopez, attached to the complaint as Exhibit Z, indicates the plaintiff knew his appeal had been denied on that date. Jefferson formally notified the plaintiff that his appeal had been denied in two letters dated July 20 and July 21, 2005. -237

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arising from Jefferson's failure to reinstate him accrued no earlier than October 2006, when Jefferson refused to allow him to return after he met its conditions for reinstatement. He

alternatively argues that, because Jefferson still refuses to allow him to return, his claim continues to accrue under a continuing violation theory. Both the United States Supreme Court and the United States Court of Appeals for the Third Circuit have addressed when claims arising out of a termination or dismissal accrue in the context of employment discrimination claims under statutes other than the ADA and the Rehabilitation Act. These decisions have

held that, in the employment context, a claim of unlawful discrimination accrues when an employer "establishes its official position and communicates that position by giving notice to the affected employee." Bailey v. United Airlines, 279 F.3d 194 (3d

Cir. 2002) (citing Del. State College v. Ricks, 449 U.S. 250, 257 (1980)). A employer establishes an "official position" when it

"unconditionally" makes an adverse employment decision and communicates that decision to the plaintiff. Id.; see also

Watson v. Eastman Kodak Co., 235 F.3d 851, 855-56 (3d Cir. 2000); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1419 (3d Cir.

Because all of these dates are after the day upon which the plaintiff's claims in Datto I must have accrued to be timely, the Court need not decide exactly when the plaintiff learned of the denial. -24-

1991) (ADEA claim accrued when the employer reached a "definitive conclusion" to terminate the plaintiff). In Ricks, the United States Supreme Court considered a claim brought by a university professor who was denied tenure and ultimately dismissed. Because the facts of Ricks have some

parallels to those here, the Court will discuss the case in some detail. In February 1973, a university faculty committee informed the Ricks plaintiff that it would not be recommending him for tenure, but that it would reconsider its decision in a year. In February 1974, the faculty committee again decided not In March 1974, the full

to recommend the plaintiff for tenure.

faculty senate adopted the committee's recommendation and, later that month, the board of directors of the university formally denied the plaintiff tenure. The plaintiff then filed a Id., 449 U.S.

grievance seeking reconsideration of the decision. at 252.

The university's policy was to terminate any faculty member considered and rejected for tenure, but to delay the termination by offering the faculty member a one-year "terminal" contract, after which he or she would leave the university. The

Ricks plaintiff was offered and accepted such a contract in June 1974. In September 1974, the plaintiff's grievance was denied

and, in June 1975, at the end of his one-year contract, the plaintiff was discharged. Id., 449 U.S. at 252-54. -25-

The Ricks plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in April 1975 and, in September 1977, after receiving his right-to-sue letter, filed suit under Title VII and 42 U.S.C. § 1981. The defendants moved

to dismiss on the ground that the plaintiff's claims were timebarred because he had not filed his EEOC complaint within 180 days of the relevant allegedly unlawful employment action, as required for his Title VII claim, or filed his lawsuit within three years of the defendants' discriminatory actions, as required for his § 1981 claim. The district court granted the

motion to dismiss, finding that the plaintiff's claim accrued upon the denial of tenure. The court of appeals reversed,

finding that the claim accrued only upon the plaintiff's ultimate termination. On appeal, the Supreme Court reversed and upheld Id., 449 U.S. at 254-256.

the district court's dismissal.

The Supreme Court held that, to determine when the plaintiff's claim accrued, a court was required to first identify the precise unlawful employment practice challenged by the plaintiff. The Court found that, although the plaintiff had

attempted on appeal to characterize his claim as challenging both his denial of tenure and his termination as motivated by unlawful discrimination, this was contradicted by the allegations of his complaint. The plaintiff's complaint failed to allege any

discriminatory acts occurring up to the time of his termination or that the manner of his termination differed from those of -26-

other faculty members who had been denied tenure.

Because the

only alleged discrimination in the case concerned the denial of tenure, the Court found that the plaintiff's discrimination claim accrued when that decision "was made and communicated" to the plaintiff. Id., 449 U.S. at 259. The plaintiff's subsequent

termination was only an "effect" or "consequence" of the defendant's alleged discriminatory denial of tenure but not a discriminatory act itself. Id. at 259.

Having found that the plaintiff's claim accrued when the decision to deny him tenure was "made and communicated" to him, the Court next considered the effect of the plaintiff's grievance appealing the university's tenure decision. The Court

found that the statute of limitations began to run when the plaintiff was notified in a letter sent in June 1974 of the university's official decision to deny him tenure. Although the

plaintiff's grievance was pending at this time and was not decided until September 1974, the Court held that this did not affect the limitations period. The Court found that the

university's "willingness to change its prior decision if Ricks' grievance were found to be meritorious" did not render its tenure decision tentative, as it merely provided a remedy to an decision already made. Id., 449 U.S. at 261. Because the June 1974

accrual date meant that the plaintiffs' claims had been filed outside the statute of limitations, the Court remanded the case

-27-

with instructions to reinstate the district court's dismissal. Id. at 262. In this case, as instructed by Ricks, the court must begin an analysis of the statute of limitations by identifying the unlawful actions challenged by the plaintiff. The

allegations of the operative complaint challenge two distinct decisions by the defendants: the decision to dismiss the

plaintiff from Jefferson's M.D./Ph.D. program, first communicated to him in a letter of May 31, 2005, and subsequently upheld on appeal and communicated to him July 20 and 21, 2005, and the decision not to reinstate him to the program, which the plaintiff alleges took place in October 2006. The plaintiff's claims concerning the first decision accrued on May 31, 2005, when the plaintiff was notified by letter that Jefferson had dismissed him. The letter told the

plaintiff that the Jefferson Committee on Student Promotion "has decided that your status at Jefferson Medical College has been officially dismissed." This language is not equivocal. It

describes a completed decision to dismiss the plaintiff and describes his current status as "officially dismissed." With the

letter, Jefferson "made and communicated" the decision and started the statute of limitations running on all the plaintiff's claims concerning it. F.3d at 199. See Ricks, 449 U.S. at 259; Bailey, 279

-28-

The plaintiff's appeal of this decision and the possibility that it could have been reversed do not change when the cause of action accrued or otherwise toll the statute of limitations. Like the grievance in Ricks, this was an

opportunity for the plaintiff to have the defendants reconsider a decision that had already been made. As such, the plaintiff's

cause of action arose when the initial decision was communicated to him, not upon the conclusion of his appeal. Having found that the plaintiff's claims concerning Jefferson's decision to dismiss him from the M.D./Ph.D. program accrued on May 31, 2005, the Court will dismiss the plaintiff's ADA and Rehabilitation Act claims in Datto I concerning that decision. To be timely, the plaintiff would have had to file

those claims by May 31, 2007, and Datto I was not begun until July 11, 2007. As discussed below, the Court finds that these

claims cannot be considered part of a continuing violation that might toll the statute of limitations. The second decision challenged by the plaintiff is Jefferson's refusal to reinstate him. The July 20, 2005, letter

to the plaintiff from Assistant Dean Lopez informed the plaintiff that his appeal had been denied but set out three conditions that, if met, would allow the plaintiff to be reinstated. The

plaintiff alleges that he satisfied these conditions, but that, in October 2006, the university "attempted to revoke" its promise to reinstate him. Although the complaint gives few details -29-

concerning this October 2006 decision, it is clear that the plaintiff is alleging that the decision not to reinstate him was both motivated by discriminatory or retaliatory animus and constituted a failure to accommodate his disability in violation of the ADA and Rehabilitation Acts. 197, 203, 217, 222. In his brief, the plaintiff seeks to characterize the October 2006 failure to reinstate him as a "continuing violation" and part of a pattern and practice that includes his initial dismissal. When a defendant's conduct is part of a continuing See Datto I Compl ¶¶ 191,

practice, the statute of limitations is extended so that an action will be timely as long as the last act evidencing the continuing practice falls within the limitations period. Brenner

v. Local 514, United Bd. of Carpenters & Joiners, 927 F.2d 1283, 1295 (3d Cir. 1991). In this case, if the plaintiff's claims

concerning the failure to reinstate him were filed within the statute of limitations and were part of a continuing practice with his dismissal, then the plaintiff's otherwise time-barred claims concerning the dismissal would be timely. A continuing violation theory, however, is restricted to situations like those alleging a hostile work environment, involving repeated actions that may not be actionable on their own. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 The theory does not apply to "[d]iscrete acts such as

(2002).

termination, failure to promote, denial of transfer, or refusal -30-

to hire" in which "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 114.8

Here, Jefferson's May 2005 decision to dismiss the plaintiff and its October 2006 decision not to reinstate him are separate and discrete acts, and each therefore has its own statute of limitations clock. In Datto I, the plaintiff's ADA and Rehabilitation Act claims concerning the decision not to reinstate him are timely. The two-year statute of limitations on the October 2006 decision expired October 2008, and Datto I was filed over a year earlier on July 11, 2007.

(1)

Individual Liability Under the ADA

Whether the ADA imposes liability upon individuals for claims of retaliation is an issue that has divided the federal courts. Some courts have held that individual liability is not

available for retaliation claims under the ADA because the ADA's terms should be interpreted in light of Title VII's prohibition

Morgan involved a case brought under Title VII. The United States Court of Appeals for the Third Circuit has applied Morgan to cases brought under the ADA in at least three unpublished, non-precedential decisions. Zankel v. Temple Univ., 245 Fed. Appx. 196, 198-99 (3d Cir. 2007); Zdziech v. DaimlerChrysler Corp., 114 Fed. Appx. 469, 471 (3d Cir. 2004); Shenkan v. Potter, 71 Fed. Appx. 893, 895 (3d Cir. 2003). It has also described Morgan's distinction between discrete acts and continuing violations as a "generic feature of federal employment law" in O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (applying Morgan in a § 1983 case). -31-

8

on individual liability.

Other courts, looking more closely at

the statutory language, have held that the ADA imposes individual liability for retaliation claims that do not involve employment. The Court will begin its analysis with a general overview of the ADA and its provisions.

a ()

Statutory Structure and Text The first three

The ADA contains four sub-parts.

sections of the statute, Titles I, II, and III, bar discrimination on the basis of disability in different areas of public life. ADA Title I addresses discrimination in employment and bars disability discrimination by an "employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. §§ 12111(2), 12112. Title I contains its own

enforcement provision, § 12117, which incorporates the remedies of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-4 to -9. ADA Title II, in pertinent part, bars disability discrimination in the services, programs, or activities of a "public entity," defined as a state or local government, its agencies or instrumentalities, and the National Railroad Passenger Corporation or any commuter authority. §§ 12131(1), 12132.9 Id.

Title II contains an enforcement provision,

9

Part B.

Title II is itself divided into two parts, Part A and Part A, §§ 12131-12134, concerns discrimination by -32-

§ 12133, which incorporates the remedies of the Rehabilitation Act, 29 U.S.C. § 794a(a)(2), which, in turn, incorporates Title VI of the Civil Rights Act, 42 U.S.C. §§ 2000d, et seq. ADA Title III addresses disability discrimination in public accommodations, defined to include places of education including post-graduate private schools, and bars disability discrimination by "any person who owns, leases (or leases to), or operates a place of public accommodation." 12182. §§ 12181(7)(J),

The enforcement provision of Title III, § 12188,

incorporates the remedies of Title II of the Civil Rights Act, 42 U.S.C. § 2000a-3. The final sub-part of the ADA, Title IV, contains miscellaneous provisions. One of these provisions, § 12203,

forbids retaliation against anyone for opposing actions made unlawful under the ADA or for participating in a charge under the ADA. § 12203(a). It also forbids coercion or intimidation

against anyone exercising his or her rights under the statute. § 12203(b). The relevant language concerning retaliation is

broadly worded: No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an

public entities and is the subsection at issue in this case. Part B, §§ 12141-12165, applies to public transportation. -33-

investigation, proceeding, or hearing under this chapter. § 12203(a) (emphasis added). Section 12203 contains its own enforcement provision which provides that anyone subject to retaliation or coercion in violation of the section shall have "[t]he remedies and procedures available" under the specific enforcement provisions of Titles I, II, and III, with respect to retaliation concerning those respective provisions. § 12203(c). Under this language, a

plaintiff bringing a retaliation claim will have different remedies depending on the particular rights under the ADA at issue. For example, a plaintiff bringing an ADA retaliation

claim involving employment will have the remedies of Title I of the ADA, which incorporates the remedies of Title VII, but a plaintiff bringing a retaliation claim involving public accommodations will have the remedies of Title III of the ADA, incorporating the remedies of Title II of the Civil Rights Act.

b ()

Prior Decisions

The United States Court of Appeals for the Third Circuit has not yet addressed whether individual liability exists for retaliation claims under the ADA, but it has addressed the existence of such liability for discrimination claims under the ADA's other three titles. It has stated in dicta that individual

liability is not available for discrimination claims brought

-34-

under Title I or Title II of the ADA.

Koslow v. Commw. of Pa.,

302 F.3d 161, 178 (3d Cir. 2002) ("there appears to be no individual liability for damages under Title I of the ADA"); Emerson v. Theil College, 296 F.3d 184, 189 (3d Cir. 2002) (suggesting in dicta that "individuals are not liable under Titles I and II of the ADA") (citing Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001) (holding Title II does not allow suits against individuals). It has also held that

individual liability is available under Title III of the ADA, but only if an individual owns, leases, or operates a place of public accommodation. Emerson, 296 F.3d at 189.10

Courts that have addressed individual liability for retaliation claims under the ADA have reached different conclusions depending on what rights under the ADA are involved in the claim. In cases involving retaliation for the exercise of

rights under Title I, involving employment, courts have uniformly found that individual liability is not available. In cases

involving retaliation for exercising rights under Title II,

Although the Emerson court found individual liability could be imposed under Title III on owners, lessors, or operators of public accommodations, it interpreted the scope of this liability narrowly. The court held that to "operate" a public accommodation within the meaning of the statute, one must control or direct its functioning or conduct its affairs. In applying this definition, the court found, without explanation, that the president, deans, and faculty members of a college could not be considered to "operate" it within the meaning of Title III and so were not subject to individual liability. Emerson, 296 F.3d at 189. -35-

10

involving discrimination by public entities, courts have divided as to the existence of individual liability. Cases involving

retaliation for exercise of Title III rights, involving public accommodations, have been few and less clearly reasoned, but have denied individual liability. Here, the plaintiff brings retaliation claims for the exercise of his rights under ADA Title II and Title III. Although the plaintiff has not alleged retaliation involving Title I, the Court will nonetheless start by discussing decisions involving such claims because their reasoning forms the basis for subsequent decisions concerning Title II and Title III.

i)

Title I

Courts considering retaliation claims involving the exercise of Title I rights forbidding employment discrimination have found that individual liability may not be imposed for such claims. See, e.g., Albra v. Advan, Inc., 490 F.3d 826, 830-34

(11th Cir. 2007); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999); Stern v. Cal. State Archives, 982 F. Supp. 690, 692-93 (E.D. Cal. 1997); McInerney v. Moyer Lumber and Hardware, Inc., 244 F. Supp.2d 393 (E.D. Pa. 2002). These decisions rely on the similarity between Title VII, the Age Discrimination in Employment Act ("ADEA"), and Title I of the ADA, which all involve discrimination in employment. All three statutes impose liability on employers and define an -36-

"employer" similarly as "a person" engaged in industry or commerce who has either fifteen or twenty or more employees. Compare 42 U.S.C. § 12111(5)(A) with id. § 2000e(b) and 29 U.S.C. § 630(b). Because of this similarity in language and purpose,

courts have routinely held that decisions interpreting one statute should guide the interpretation of the other. See, e.g.,

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995) (noting that "the ADA, ADEA, and Title VII all serve the same purpose -- to prohibit discrimination in employment against members of certain classes[, and] . . . the methods and manner of proof under one statute should inform the standards under the others as well."); E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1280 (7th Cir. 1995) ("Courts routinely apply arguments regarding individual liability to all three statutes interchangeably."). Title VII has long been interpreted not to impose liability on individuals. Sheridan v. E.I. DuPont de Nemours and This conclusion is

Co., 100 F.3d 1061, 1077 (3d Cir. 1996).

based, in part, on the structure of the statute, which sets out a sliding scale for damages based on an employer's number of employees that makes no reference to the amount of damages payable by an individual. Id. 1077-78. Based on the same

reasoning, Title I of the ADA has also been interpreted to not impose individual liability. See Koslow v. Commw. of Pa., 302

F.3d 161, 178 (3d Cir. 2002) (stating that there "appears to be -37-

no individual liability for damages under Title I of the ADA and citing AIC Sec. Investigations, 55 F.3d at 1280 (holding that Title I did not impose individual liability for damages and citing cases so holding under Title VII and the ADEA)). Courts addressing whether individual liability may be imposed under the ADA for retaliation claims involving employment have often not distinguished between discrimination claims under Title I of the ADA and retaliation claims under Title IV, § 12203. Such cases have held, without separate analysis, that

individual liability is not available under either type of claim. See, e.g,, Butler, 172 F.3d at 744; McInerney, 244 F. Supp.2d at 397-98. These decisions do not address the distinct language of

§ 12203(a) prohibiting retaliation by "persons." Several courts have addressed the statutory text of § 12203 and have reached the same conclusion that individual liability is not available for retaliation claims. F.3d at 830-34; Stern, 982 F. Supp. at 692-94. Albra, 490

These decisions

reason that the reach of the broad language of § 12203(a), referring to retaliation by "persons," is narrowed by the enforcement provisions of § 12203(c), which with respect to claims involving employment incorporate the remedies of Title VII. Because Title VII has been consistently held not to provide

a remedy against individual defendants, these courts reason that, by incorporating Title VII remedies in claims involving employment, the retaliation provision of the ADA has been -38-

similarly limited. Supp. at 694.

Albra, 490 F.3d at 832-33; Stern, 982 F.

ii)

Title II

Title II of the ADA concerns discrimination by "public entities." As mentioned earlier, the United States Court of

Appeals for the Third Circuit has suggested, in accordance with other courts that have considered the issue, that Title II does not impose liability upon individuals, at least for damages. Emerson, 296 F.3d at 189 (dicta) (citing Garcia, 280 F.3d at 107); see also Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (no individual liability under Title II); c.f. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (individuals may be sued under Title II in their official capacity for prospective injunctive relief under Ex Parte Young); McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 413-14 (5th Cir. 2004) (same). In considering retaliation claims under the ADA involving public entities, courts have divided as to whether individual liability exists. At least one court has held that it

does not, assuming without explanation that Title VII's prohibition on individual liability should apply to all provisions of the ADA. Baird ex rel. Baird v. Rose, 192 F.3d

462, 472 (4th Cir. 1999) ("because Congress has made the remedies available in Title VII applicable to ADA actions, the ADA does -39-

not permit an action against individual defendants for retaliation for conduct protected by the ADA"). Baird did not

address the language of § 12203(a) forbidding retaliation by "persons" or consider that the relevant enforcement provisions of § 12203(c) for claims involving a public entity incorporate the remedies of Title VI, not Title VII. Other courts have more directly grappled with the statutory language. The leading case to do so is Shotz v. City Shotz began by

of Plantation, 344 F.3d 1161 (11th Cir. 2003).

recognizing that the language of § 12203(a), forbidding retaliation by "persons," imposed a duty on individuals "to refrain from such conduct." Id. at 1168. The court reasoned

that the fact that the statute "imposes such a duty on a class of actors does not compel the further conclusion that individual members of that class are amenable to private suit or otherwise liable for a breach of that duty." Id. To determine whether

individuals were liable for retaliation, the Shotz court turned to the applicable enforcement provision of the statute, incorporating the remedies of Title VI, 42 U.S.C. §§ 2000e-5(f)(k). Title VI provides that no person shall be excluded from participation or subjected to discrimination by any program or activity receiving federal funds. 42 U.S.C. §§ 2000d. Although

the statute contains no private right of action, one has been implied that allows for both compensatory damages and injunctive -40-

relief.

Barnes v. Gorman, 536 U.S. 181, 185-87 (2002).

Because

Title VI is an exercise of the Congress's Spending Power, courts have interpreted Title VI to impose liability only upon those who actually receive federal funds for the program or activity at issue and have, therefore, held that individuals are ordinarily not liable under the statute. See Shotz, 344 F.3d at 1169-70;

Shannon v. Lardizzone, 2008 WL 2385790 (D. Del. June 11, 2008), aff'd, 2009 WL 1705664 (3d Cir. June 18, 2009) (unpublished op.); Kelly v. Rice, 375 F. Supp.2d 203, 209 (S.D.N.Y. 2005). Shotz found that, because Title VI did not reach individuals unless they could be held to be recipients of federal funds, there was a conflict between the broad language of § 12203(a) imposing liability upon all "persons" and the applicable enforcement provisions of § 12203(c) that incorporated Title VI's remedies. Shotz described the conflict as:

Did Congress intend the rights-and duty-creating language in the ADA anti-retaliation provision to, itself, countenance liability against individuals for its violation, or did Congress intend the remedies available for Title VI violations to control exclusively the type of relief available as well as the appropriate scope of liability? Id. at 1171. Shotz expressed concern that if the remedies of Title VI governed the scope of liability for retaliation involving public services under the ADA, the result might deviate considerably from the ADA's intent and purpose. -41Unlike Title VI,

the ADA was not enacted under the spending power and was intended to reach all "public entities," regardless of whether they received federal funds. Shotz also noted that limiting the ADA's

retaliation provision to only recipients of federal funds might make it duplicative of the Rehabilitation Act, 29 U.S.C.A. § 794, which similarly prohibits disability discrimination by entities receiving federal funding. Id. at 1174.

After considering both the text and the legislative history of the ADA, the Shotz court held that it was unable to resolve the conflict and that the statute was ambiguous. court, therefore, turned to agency interpretations. The

Id. at 1177.

Regulations construing the retaliation provision of the ADA have been issued by the United States Department of Justice ("DOJ").11 In pertinent part, they state that "[n]o private or

public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part. . . ." 28 C.F.R. §§ 35.134. In issuing these

regulations, the DOJ provided a section-by-section analysis,

The authority to issue regulations to implement the ADA is apportioned by title. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-79 (1999). The EEOC has authority to issue regulations pertaining to ADA Title I, §§ 12111-12117, pursuant to § 12116. The Attorney General, through the Department of Justice, has authority to issue regulations with respect to Title II, subtitle A, §§ 12131-12134, pursuant to § 12134 and with respect to the non-transportation provisions of Title III, pursuant to § 12186(b). The Secretary of Transportation has authority to issue regulations pertaining to the transportation provisions of Titles II and III, pursuant to § 12149(a). -42-

11

published as an appendix to the regulations, which explains their scope. states: Because this section prohibits any act of retaliation or coercion in response to an individual's effort to exercise rights established by the Act . . . the section applies not only to public entities subject to this part, but also to persons acting in an individual capacity or to private entities. For example, it would be a violation of the Act and this part for a private individual to harass or intimidate an individual with a disability in an effort to prevent that individual from attending a concert in a State-owned park. It would, likewise, be a violation of the Act and this part for a private entity to take adverse action against an employee who appeared as a witness on behalf of an individual who sought to enforce the Act. 28 C.F.R. Part 35, App. A., "Nondiscrimination on the Basis of Disability in State and Local Government Services," 56 Fed. Reg. 35,696, 35,707 (July 26, 1991). Shotz found that these DOJ regulations were entitled to Chevron deference as a permissible construction of an ambiguous statute. The court therefore held that individuals could be With respect to the ADA's retaliation provision, it

liable for violating § 12203 of the ADA for retaliation involving public services. Id., 344 F.3d at 1179-80.

Several courts since the Shotz decision have adopted its reasoning and similarly found that ADA retaliation claims involving public services may be brought against individuals. See Alston v. District of Columbia, 561 F. Supp.2d 29 (D.D.C.

-43-

2008); Thomas v. Pa. Dep't of Corr., 2008 WL 68628 *5 (W.D. Pa. Jan. 04, 2008); Zied-Campbell v. Richman, 2007 WL 1031399 at *18 (M.D. Pa. March 30, 2007).

iii) Title III This Court has found only two decisions addressing individual liability for ADA retaliation claims under § 12203 involving disability discrimination in public accommodations, actionable under Title III of the ADA. Scott v. Greater Phila.

Health Action, Inc., 2008 WL 4140407, *4 (E.D. Pa. Sep 05, 2008); Douris v. Schweiker, 229 F. Supp.2d 391, 396-97 (E.D. Pa. 2002). Both hold that individual liability is not available for such claims on the basis of a "consensus view in this judicial district" that there is "no individual liability under the ADA." Scott at *4; Douris at 397 (citations and internal quotations omitted). The cases cited in support of this consensus, however,

concern discrimination in the context of employment, not public accommodations. Douris expressly relies on Title VII's

prohibition on individual liability in support of its holding. Neither case addresses the specific language of § 12203.

-44-

c ()

Analysis of Individual Liability

The Court finds that individual liability may be imposed for retaliation claims under the ADA involving either public entities or public accommodations. The Court begins with the clear statement of § 12203(a) that "no person" shall discriminate against any individual for opposing an act or practice made unlawful under the ADA or participating in a proceeding under the ADA. This language

imposes a duty on individuals and, standing alone, would support individual liability under the statute. The Court must next consider whether the enforcement provisions of § 12203(c) narrow the scope of liability under the statute. As discussed above, courts considering ADA retaliation

claims in the context of employment have looked to Title VII's prohibition on individual liability and similarly limited claims under the ADA. This is appropriate in employment cases because,

under § 12203(c), retaliation claims in that context apply the remedies of Title I of the ADA, which incorporates the remedies of Title VII. Title VII, however, is not relevant to retaliation

claims involvi