Monninger v. Shippensburg University et al

Filing 121

ORDER - IT IS ORDERED that 1) MJ Schwab's R&R is ADOPTED. 2)Pltf's mtn for psumjgm is GRANTED IN PART AND DENIED IN PART. 3)Dft's mtn for sumjgm is GRANTED IN PART AND DENIED IN PART. 4. Defendants motion to deem objections to R&R as t imely filed and served (Doc. No. 113) is GRANTED; 5. Plaintiffs motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure (Doc. No. 117) is DENIED; and 6. Defendants motion for extension of time to file a brief opposing Plaintiffs motion for sanctions (Doc. No. 119) is DENIED AS MOOT. 66 92 106 113 117 119 Signed by Honorable Yvette Kane on 12/2/16. SEE ORDER FOR DETAILS. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HARLEY MONNINGER,
Plaintiff
v.
SHIPPENSBURG UNIVERSITY, et al.,
Defendants

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No. 1:13-cv-2471
(Judge Kane)
(Magistrate Judge Schwab)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is the Report and Recommendation of Magistrate Judge Schwab,
recommending that Plaintiff’s motion for partial summary judgment be granted in part and
denied in part and Defendants’ motion for summary judgment be granted in part and denied in
part. (Doc. No. 106.) The Court will adopt the Report and Recommendation in its entirety.
On February 18, 2014, Plaintiff Harley Monninger filed an amended complaint against
Defendants Shippensburg University, Kurt Fuellhart, Janet Smith, William Blewitt, James Mike,
Tracy Schoolcraft, Kim Long, and James Johnson, alleging violations under the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”); Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794 (“RA”); 42 U.S.C. § 1983; 42 U.S.C. § 1985; and the First and
Fourteenth Amendments to the United States Constitution. (Doc. No. 7.) Plaintiff alleges, inter
alia, that Defendant Shippensburg University discriminated and retaliated against him for
requesting accommodations for his bilateral hearing loss disability, inquiring into grievance
procedures, and filing a complaint with the United States Department of Education’s Office for
Civil Rights. (Id. ¶¶ 187, 190-194, 201-206, 213-217, 225-229.)
On August 16, 2016, Magistrate Judge Schwab issued a Report and Recommendation,
recommending that both Plaintiff’s motion for partial summary judgment and Defendants’
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motion for summary judgment be granted in part and denied in part. (Doc. No. 106.)
Specifically, Magistrate Judge Schwab recommends that this Court: (1) grant Plaintiff’s motion
for summary judgment as to his failure to accommodate claim under the ADA and RA (id. at 26,
57); and (2) grant Defendants’ motion for summary judgment as to Plaintiff’s discrimination
claim under the ADA and RA, equal protection claim, procedural due process claim, Section
1985(3) conspiracy claim, and First Amendment retaliation claim on the basis of his referral to
Shippensburg University’s Ship Cares program (id. at 28-29, 46, 50, 55, 57-58).
On August 29, 2016, the parties jointly requested and were granted an extension of time
to file objections to the Report and Recommendation and brief the objections. (Doc. Nos. 107,
108.) Plaintiff filed objections on September 12, 2016 (Doc. No. 109), and Defendants filed
objections on September 26, 2016 (Doc. No. 111). Defendants also filed a brief in opposition to
Plaintiff’s objections and submitted a brief in support of their objections. (Doc. Nos. 110, 112)
The parties filed a reply brief thereafter. (Doc. Nos. 115, 116). On October 18, 2016, Plaintiff
filed a motion for sanctions against Defendants for belatedly filing their objections and then
requesting that the Court deem the objections timely filed. (Doc. Nos. 117, 118.)
As to the substance of the objections, Plaintiff challenges Magistrate Judge Schwab’s
recommendation to grant summary judgment to Defendants on Plaintiff’s discrimination claim
under the ADA and RA.1 (Doc. No. 109 at 1-3, 109-2 at 1-2.) Specifically, Plaintiff objects to
the finding that he “has not come forward with evidence from which a reasonable trier of fact
could find that his bi-lateral hearing loss was the cause of the University’s failure to provide him
with priority seating.” (See Doc. Nos. 106 at 29; 109 at 2-3.) In support of his objection,

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Although Plaintiff does not object to Magistrate Judge Schwab’s conclusions as to his
retaliation claims under the ADA and RA, Plaintiff notes that his GPA was over “3.0 at the end
of his first or Fall 2011 semesters.” (Doc. No. 109 at 3-4.)
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Plaintiff attaches a disability form that he characterizes as newly discovered evidence. Plaintiff
reasons that a “declaration of disability” form, which includes the handwritten notation “does not
wear hearing aids,” evidences that Plaintiff was subject to discrimination because of his
disability. (Doc. Nos. 109 at 1-3; 109-2 at 2.) Even when considering the disability declaration
form in the light most favorable to Plaintiff, this Court agrees with Magistrate Judge Schwab’s
finding that Plaintiff’s discrimination claim under the ADA and RA cannot survive summary
judgment. (See Doc. Nos. 106 at 28-29; 109-2 at 2.)
Defendants object to Magistrate Judge Schwab’s recommendation that this Court grant
summary judgment to Plaintiff on his failure to accommodate claim, premised on Plaintiffs’
allegations that Defendant Shippensburg University failed to provide him with priority seating in
the classroom. (Doc. Nos. 111, 112.) The Court finds that Magistrate Judge Schwab correctly
and comprehensively addressed the substance of Defendants’ objections in the Report and
Recommendation. (Doc. No. 106); Ohler v. Lamas, 542 F. App'x 205, 207 (3d Cir. 2013). The
Court will not write separately to address Defendants’ objections. ACCORDINGLY, upon
independent review of the record and applicable law, on this 2nd day of December 2016, IT IS
HEREBY ORDERED THAT:
1. Magistrate Judge Schwab’s Report and Recommendation (Doc. No. 106), is
ADOPTED;
2. Plaintiff’s motion for partial summary judgment (Doc. No. 92) is GRANTED IN
PART and DENIED IN PART as follows:
a. Plaintiff’s motion for partial summary judgment (Doc. No. 66) is GRANTED
with respect to Plaintiff’s failure to accommodate claim under the ADA and
RA;
b. In all other respects, Plaintiff’s motion for partial summary judgment is
DENIED;

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3. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED IN PART
and DENIED IN PART as follows:
a. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED with
respect to Plaintiff’s discrimination claim under the ADA and RA;
b. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED with
respect to Plaintiff’s First Amendment retaliation claim on the basis of his
referral to the Ship Cares program;
c. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED with
respect to Plaintiff’s equal protection claim under the Fourteenth Amendment;
d. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED with
respect to Plaintiff’s procedural due process claim under the Fourteenth
Amendment;
e. Defendants’ motion for summary judgment (Doc. No. 66) is GRANTED with
respect to Plaintiff’s Section 1985(3) conspiracy claim;
f. In all other respects, Defendants’ motion for summary judgment is DENIED;
4. Defendants’ motion to deem objections to Report and Recommendation as timely
filed and served (Doc. No. 113) is GRANTED;
5. Plaintiff’s motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure (Doc. No. 117) is DENIED; and
6. Defendants’ motion for extension of time to file a brief opposing Plaintiff’s motion
for sanctions (Doc. No. 119) is DENIED AS MOOT.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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