Sweeney v. Texas State University

Filing 72

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 68 Report and Recommendations, ORDER GRANTING 57 MOTION for Summary Judgment filed by Texas State University, ORDER DISMISSING AS MOOT 48 MOTION for Protective Order filed by Michael Joseph Sweeney, ORDER DISMISSING AS MOOT 54 CORRECTED MOTION for Sanctions filed by Texas State University, ORDER DISMISSING AS MOOT 62 MOTION for Judgment as a Matter of Law filed by Michael Joseph Sweeney. Signed by Judge David A. Ezra. (ml)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MICHAEL SWEENEY,
Plaintiff,
vs.
TEXAS STATE UNIVERSITY,
Defendant.

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No. 1:14–CV–910–DAE

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE; AND
(2) GRANTING MOTION FOR SUMMARY JUDGMENT
Before the Court is a Report and Recommendation by United States
Magistrate Judge Andrew Austin (Dkt. # 68) regarding the Motion for Summary
Judgment filed by Defendant Texas State University (“Texas State”) (Dkt. # 57).
Pursuant to Local Rule CV-7(h), the Court finds these matters suitable for
disposition without a hearing. After reviewing the motion and response, as well as
the objection and responses to the Report and Recommendation, the Court, for the
reasons that follow ADOPTS the Report and Recommendation of the Magistrate
Judge (Dkt. # 68) and GRANTS Defendant’s Motion for Summary Judgment
(Dkt. # 57).

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BACKGROUND
Michael Joseph Sweeney is a pro se plaintiff who enrolled in a
graduate Public Administration (“M.P.A.”) program at Texas State in the fall of
2010. (Dkt. # 1at 1; Dkt. # 5 at 1; Dkt. # 57, Ex. C at 3.) Plaintiff is legally blind
in his right eye, and received academic accommodations from Texas State due to
this disability. (Dkt. # 5 at 1.) These accommodations included extended time
during tests, quizzes, and in-class writing assignments, private testing
accommodations, preferential seating, early course registration, and audio
recording of class lectures. (Id.) While Plaintiff initially brought many claims
against Texas State, only one still remains; accordingly, only the facts relevant to
that claim are recounted here.
M.P.A. students at Texas State are required to take Political Science
5397 (“POSI 5397”), a three-credit capstone course for the Master’s program, in
which the student completes an applied research project. (“Longoria Aff.,” Dkt.
# 57, Ex. A ¶ 3.) A student may not register for POSI 5397 until he has prepared a
detailed prospectus; this prospectus must be approved by the supervising professor
before the student is permitted to enroll. (Id.)
On October 13, 2012, Plaintiff sent the following e-mail to Dr.
Thomas Longoria, a professor at Texas State: “Thomas, I have completed by ARP
Prospectus and have attached it for your review, and approval. I am eligible for
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early Spring registration which began on October 11; therefore, I would like an
approval on my prospectus as soon as possible.” (Dkt. # 18-13 at 21.) Dr.
Longoria responded on October 15, 2012, that “I have too many questions and
concerns to approve the prospectus. Make an appointment. I’ll be on campus
tomorrow afternoon and on the RR campus Wed afternoon.” (Id.) After
subsequent e-mails, the two decided to meet on October 25, 2012. (Id.)
Plaintiff claims that during this meeting, Dr. Longoria verbally abused
him for 40 minutes, though he concedes that at some point in the meeting, Dr.
Longoria did make some suggestions to Plaintiff regarding his research prospectus.
(Dkt. # 5 at 3.) Plaintiff claims that during the meeting, Dr. Longoria placed his
hand over his eye, showing he was offended by Plaintiff’s disability. (Id.)
Plaintiff did not submit his revised prospectus to Dr. Longoria until
December 17, 2016, after the early class registration period had passed. 1 (Dkt.
# 57, Ex. A at 10; 24–26.) Dr. Longoria replied the same day with questions and
comments, stating “[w]hat you have sent appears to be a start.” (Id. at 10.)
Plaintiff did not reply. (Id.; Longoria Aff. ¶ 10.) Plaintiff was not admitted into
POSI 5397 in the spring semester; he claims this was the result of Dr. Longoria’s
refusal to make modifications to the academic program, in violation of the ADA.

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Notably, the revised prospectus was only two pages long.
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(Dkt. # 5 at 3.) Plaintiff claims that this has caused him severe and continuous
mental and emotional anguish. (Id. at 3, 5.)
Plaintiff filed a formal complaint regarding Dr. Longoria’s behavior
with Texas State’s Office of Equity and Access, alleging harassment and
discrimination. (Dkt. # 5 at 5.) The Chief Diversity Officer reviewed the
complaint and determined that Dr. Longoria had committed no wrongdoing. (Id.).
On October 2, 2014, Plaintiff brought suit against the school. (Dkt.
# 1). On October 14, 2014, pursuant to an order of this Court, Plaintiff filed a
More Definite Statement. (Dkt. # 5). On May 14, 2015, Magistrate Judge Austin
issued a report and recommendation pursuant to a Motion to Dismiss filed by
Texas State, recommending dismissal of all but the remaining claim, addressed
below (Dkt. # 21); Judge Yeakel summarily adopted the Report and
Recommendation on June 18, 2015 (Dkt. # 31).2 Accordingly, the only issue
remaining in the case is whether Plaintiff was denied entry into the capstone course
of his academic program on account of his disability. Plaintiff brings this claim for
discrimination under both the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and Section 504 of the Rehabilitation Act of 1973 (“RA”), 29
U.S.C. § 791 et seq. (Dkt. # 1.)

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This case was later transferred to this Court’s docket on March 21, 2016. (Dkt.
# 60.)
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On February 5, 2016, Texas State filed the instant Motion for
Summary Judgment (Dkt. # 57); Plaintiff timely filed a Response (Dkt. # 59). On
July 11, 2016, Magistrate Judge Austin filed a Report and Recommendation on the
Motion for Summary Judgment (Dkt. # 68). Plaintiff filed an objection to the
Report and Recommendations on July 27, 2016 (Dkt. # 70), and Texas State filed a
Response (Dkt. # 71).
LEGAL STANDARD
Any party who desires to object to a Magistrate Judge’s findings and
recommendations must serve and file written objections within fourteen days after
being served with a copy of the findings and recommendation. Fed. R. Civ. P.
72(b)(2). The Court conducts a de novo review of any of the Magistrate Judge’s
conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). Findings to which no specific objections are made do not
require de novo review; the Court need only determine whether the Report and
Recommendation is clearly erroneous or contrary to law. United States v. Wilson,
864 F.2d 1219, 1221 (5th Cir. 1989). In the instant case, Plaintiff merely
“object[ed] to the Report and Recommendation . . . in its entirety.” (Dkt. # 70.)

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Accordingly, the Court reviews the Magistrate Judge’s Report and
Recommendation for clear error.
DISCUSSION
Both the ADA and the RA prohibit “discrimination against qualified
individuals with disabilities.” Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).
Section 504 of the Rehabilitation Act requires that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
her disability, be excluded from the participation in . . . any program or activity
receiving Federal financial assistance.” 29 U.S.C. §794(a). A program or activity
includes “the operations of . . . a college, university, or other postsecondary
institution.” Id. § 794(b)(2)(A). The ADA states that “no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
While the prohibitions of the RA and ADA are quite similar, the
causation standards for imposition of liability differ. “The causation standard of
[the RA] requir[es] that the discrimination be ‘solely by reason of his or her
disability,’” and imposes liability only in such a situation. Soledad v. U.S. Dept. of
Treasury, 304 F.3d 500, 505 (5th Cir. 2002) (quoting 29 U.S.C. § 794(a)); see also
Pinkerton v. Spellings, 529 F.3d 513, 516 (5th Cir. 2008) (“[u]nder § 504, the
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causation standard is settled”). Conversely, the ADA does not require
discrimination to be the “sole causation” of exclusion. Pinkerton v. Spellings, 529
F.3d at 518. Rather, “[t]he proper causation standard under the ADA is a
‘motivating factor’ test.” Id.
Despite the different standards of causation, the Fifth Circuit uses the
same test to evaluate whether a defendant should be liable for discrimination under
the RA and the ADA, and the claims may be evaluated together. D.A. ex rel.
Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010).
To establish a prima facie case of discrimination under the ADA [or
RA], a plaintiff must demonstrate: (1) that he is a qualified individual
within the meaning of the ADA; (2) that he is being excluded from
participation in, or being denied benefits of, services, programs, or
activities for which the public entity is responsible, or otherwise being
discriminated against by the public entity; and (3) that such exclusion,
denial of benefits, or discrimination is by reason of his disability.
Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir. 2004) (citing
Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997)). It is
the third element—causation, that differs between the ADA and the RA. Maples v.
Univ. of Tex. Med. Branch at Galveston, 901 F. Supp. 2d 874, 879 (S.D. Tex.
2012) (“Thus, while section 504 establishes a ‘sole cause’ test for causation, the
ADA instead establishes a ‘motivating factor’ test.”). Here, the distinction is
irrelevant, because the claims fail under the “motivating factor” standard.

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The Court has already established that Plaintiff, who “has an obvious
physical impairment from a chemical injury which caused [him] to become legally
blind [ ] in the right eye [ ]” (Dkt. # 5 at 1) is a person with a disability under Title
II of the ADA and Section 504 of the RA. (Dkt. # 21 at 5.) Accordingly, Plaintiff
has established the first element of a claim for discrimination under both the RA
and the ADA. Melton, 391 F.3d at 671–72.
The second and third elements of the test for evaluating a defendant’s
liability for discrimination under the ADA and RA are best considered together.
With regard to these elements, it is important to keep in mind that “[t]he ADA
provides a right to reasonable accommodation, not to the [plaintiff’s] preferred
accommodation.” E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 471 (5th Cir.
2009). In the academic context, this means that academic programs need not
“‘fundamentally alter the nature of the service, program, or activity’ and need not
alter eligibility criteria that are ‘shown to be necessary for the provision of the
service, program, or activity being offered.’” Maples, 901 F. Supp. 2d at 883
(quoting 28 C.F.R. § 35.130(b)(7)–(8)). Finally, the disabled person bears the
“burden to request reasonable accommodations,” where these may be necessary to
enable him to meet course requirements. Jenkins v. Cleco Power, LLC, 487 F.3d
309, 315 (5th Cir. 2007).

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It is undisputed that Plaintiff was not admitted into the spring 2013
term because the research prospectus he submitted was deemed inadequate by
Professor Longoria. (Dkt. # 68 at 6–9.) Plaintiff offered no evidence that the twopage research prospectus he submitted on December 17, 2012, was adequate to
secure admission into the capstone course. Further, Plaintiff presented no evidence
that the submission of an approved prospectus was an unreasonable prerequisite for
admission into the capstone course. Importantly, Plaintiff did not take advantage
of the early course registration accommodation, and did not submit his revised
research prospectus to Dr. Longoria until December 17—long after the early
course registration period had begun. Finally, Plaintiff presents no evidence that
he requested further accommodations from Texas State to assist him in meeting the
requirements for admission into the capstone course. Federal law does not exempt
Plaintiff from meeting basic eligibility requirements for course registration; rather,
it affords him the right to receive reasonable accommodations to meet registration
requirements. Nor does federal law provide him a cause of action to remedy his
failure to appropriately utilize the accommodations provided to him or to request
further accommodations.
Rather, Plaintiff’s discrimination claim focuses entirely on his
allegation that during his October 25, 2012 meeting with Dr. Longoria, he “placed
his right hand over his left eye, which alerted Plaintiff that [he] was obviously
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offended by the Plaintiff’s physical impairment.” (Dkt. # 5 at 3.) Even if this
unfortunate allegation is true, it is insufficient to demonstrate that Plaintiff’s
disability—and Dr. Longoria’s alleged offense at his disability—was at least a
motivating factor in determining that Plaintiff had not adequately prepared an
adequate research prospectus, resulting in his exclusion from admission into his
capstone course during the 2013 spring semester. Rather, Plaintiff received
feedback on his prospectus on October 25, 2012, submitted a revised prospectus on
December 17, 2012, and did not respond to Dr. Longoria’s subsequent questions.
Therefore, Plaintiff has failed to demonstrate that he has been excluded from the
capstone course by Texas State’s failure to provide reasonable accommodations.
Accordingly, the Magistrate Judge’s conclusion that Plaintiff failed to present
evidence of a genuine issue of material fact as to his claim for discrimination under
the ADA and RA is not clearly erroneous.
CONCLUSION
For the reasons stated above, the Court hereby ADOPTS the Report
and Recommendation of the Magistrate Judge (Dk. # 68) and GRANTS
Defendant’s Motion for Summary Judgement (Dkt. # 57.) All other pending
matters in this action (Dkts. ## 48, 54, 62) are hereby DISMISSED AS MOOT.
There being no matters remaining in this case, it is hereby DISMISSED WITH
PREJUDICE.
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IT IS SO ORDERED.
DATED: Austin, Texas, August 15, 2016.

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