Frogge v. Fox

Filing 20

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16 ]: After conducting a de novo review of the R&R and the record, the Court: SUSTAINS Frogge's objections (Dkt. No. 18 ); REJECTS the R&R (Dkt. No. 16 ); DENIES Fox's motion to dismiss (Dkt. No. 4 ); DENIES AS MOOT Frogge's motions for a hearing (Dkt. Nos. 11 ; 19 ); and RECOMMITS this case to Magistrate Judge Aloi, who is authorized to consider the record and enter rulings orrecommendations as appropriate, including the e ntry of ascheduling order on discovery and dispositive motions. (Copy to PS Plaintiff via CM, RRR.) Signed by Senior Judge Irene M. Keeley on 6/26/2018. (wrr) (Additional attachment(s) added on 6/26/2018: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
VANESSA FROGGE,
Plaintiff,
v.

CIVIL ACTION NO. 1:17CV155
(Judge Keeley)

CRAIG FOX, d/b/a Mountain
Line Transit Authority,
Defendant.
ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 20, 2017, the pro se plaintiff, Vanessa Frogge
(“Frogge”), filed a complaint in the Magistrate Court of Monongalia
County, West Virginia, against the defendant, Craig Fox (“Fox”)
(Dkt. No. 3-1 at 1). In the complaint, Frogge sought $10,000 in
damages due to Fox’s alleged discrimination at the Mountain Line
Transit Authority. Id. Because the action involved more than
$2,500, Fox removed the case to the Circuit Court of Monongalia
County, West Virginia (“Circuit Court”), under W. Va. Code § 50-48. Id. at 15-17. Although Fox moved to dismiss Frogge’s complaint
for failure to state a claim, the Circuit Court granted Frogge
leave to amend and denied Fox’s motion as moot (Dkt. No. 3-4).
On

August

29,

2017,

Frogge

filed

an

amended

complaint,

alleging that Fox, “doing business as the Mountain Line Transit
Authority,” had discriminated against her in violation of the
Americans with Disabilities Act (“ADA”) (Dkt. No. 1-1). According

FROGGE V. FOX

1:17CV155

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
to Frogge, she requested a route deviation from Mountain Line
Transit Authority due to her neck condition, but Fox denied the
request for the stated reason that Frogge’s apartment complex does
not have “an acceptable place to turn a bus.” Id. at 1-4. Frogge
disagrees

with

this

assessment

and

asserts

that

Fox

did

not

consider her disability when making the decision to deny her
request for a route deviation. Id. at 4-6. She alleges that Fox
discriminated against her in violation of the ADA, and that Fox was
acting outside the scope of his employment. Id. at 6-7.
Given Frogge’s ADA allegations, Fox promptly removed the case
to this Court on September 8, 2017, in reliance on federal question
jurisdiction under 28 U.S.C. § 1331 (Dkt. No. 1). Pursuant to 28
U.S.C. § 636 and the local rules, the matter was referred to the
Honorable Michael J. Aloi, United States Magistrate Judge, for
initial review (Dkt. No. 2). Fox moved to dismiss Frogge’s amended
complaint on September 15, 2017 (Dkt. No. 4).
In a report and recommendation (“R&R”) entered on February 27,
2018, Magistrate Judge Aloi recommended that the Court grant Fox’s
motion (Dkt. No. 16). First, the magistrate judge reasoned that
Frogge cannot maintain a cause of action under the ADA against Fox
in his individual capacity. Id. at 6. Second, he concluded that
Frogge failed to allege sufficient facts to state a plausible claim

2

FROGGE V. FOX

1:17CV155

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
for relief under the ADA. Id. at 6-8. The Court received Frogge’s
timely objections on March 12, 2018 (Dkt. No. 18).
II. STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for
dismissal on the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing a complaint, the
Court “must accept as true all of the factual allegations contained
in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). “[A] complaint must contain ‘enough facts to state a claim
to relief that is plausible on its face.’” Id. at 188 n.7 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992).
III. DISCUSSION
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
3

FROGGE V. FOX

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ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
made . . . and the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the [parties do] not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). Moreover, the Court must liberally construe pro se
pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v.
Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

Having conducted

a de novo review of the R&R and the record, the Court concludes
that, as a pro se plaintiff, Frogge has alleged sufficient facts to
state a claim for discrimination under the ADA.
A.

Public Entity
Title 42 U.S.C. § 12132 provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” A “public entity” includes “any
department,

agency,

special

purpose

district,

or

other

instrumentality of a State or States or local government.” 42
U.S.C. § 12131(1)(B). “[I]ndividuals sued in their individual
capacity are not public entities.” Carter v. Maryland, No. JKB-121789, 2012 WL 6021370, at *5 (D. Md. Dec. 3, 2012). But “a suit
against a state official in his or her official capacity . . . is
4

FROGGE V. FOX

1:17CV155

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
no different from a suit against the State itself.” Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Fox concedes that Mountain Line Transit Authority is an
instrumentality of Monongalia County, West Virginia, organized to
provide public transportation (Dkt. No. 4-1 at 5). He contends
nonetheless that, because he “is being sued in his individual
capacity,” the amended complaint fails to state a claim against a
“public entity” under the ADA (Dkt. No. 4-1 at 5-6). This argument
is not persuasive. The amended complaint plainly alleges that Fox
was “doing business as the Mountain Line Transit Authority” (Dkt.
No. 1-1 at 1). As it must, the Court liberally construes this
allegation as a claim against Fox in his official capacity as the
employee of a public entity. Estelle, 429 U.S. at 106.
B.

ADA Discrimination
“In general, a plaintiff seeking recovery for violation of

[the ADA] must allege that (1) she has a disability, (2) she is
otherwise qualified to receive the benefits of a public service,
program, or activity, and (3) she was excluded from participation
in or denied the benefits of such service, program, or activity, or
otherwise discriminated against, on the basis of her disability.”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 498 (4th Cir. 2005). “The ADA defines a disability, in part,
5

FROGGE V. FOX

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ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
as a physical or mental impairment that substantially limits one or
more of the major life activities of such individual.” Rhoads v.
F.D.I.C., 257 F.3d 373, 387 (4th Cir. 2001) (internal quotation and
alteration

omitted)

(quoting

42

U.S.C.

§

12102(2)(A)).

An

individual “is ‘otherwise qualified’ for a program if she ‘with or
without

reasonable

eligibility

modifications

requirements

for’

.

.

.

meets

participation

the
the

in

essential
program.”

Zimmeck v. Marshall Univ. Bd. of Governors, 106 F. Supp. 3d 776,
781 (S.D.W.Va. 2015) (quoting 42 U.S.C. 12131(2)).
A plaintiff may satisfy the third prong by alleging “(1)
intentional discrimination or disparate treatment; (2) disparate
impact; [or] (3) failure to make reasonable accommodations.” Adams
v. Montgomery College (Rockville), 834 F. Supp. 2d 386, 393 (D. Md.
2011) (quoting A Helping Hand, LLC v. Baltimore County, 515 F.3d
356, 362 (4th Cir. 2008)). “A ‘reasonable accommodation’ is one
that gives the otherwise qualified plaintiff with disabilities
‘meaningful access’ to the program or services sought.” Henrietta
D.

v.

Bloomberg,

331

F.3d

261,

282

(2d

Cir.

2003)

(quoting

Alexander v. Choate, 469 U.S. 287, 301 (1985)). Nonetheless, a
public

entity

“fundamentally

need
alter

not
the

make

a

nature

of

activity.” 28 C.F.R. § 35.130.

6

modification

that

the

program,

service,

would
or

FROGGE V. FOX

1:17CV155

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
Here, liberally construing Frogge’s amended complaint, she has
alleged sufficient facts to survive a motion to dismiss. As to the
first prong, the amended complaint alleges that Frogge has a “neck
condition” that decreases her “neck mobility” and limits her
ability to climb stairs to the bus stop (Dkt. No. 1-1 at 2, 6).
Under the second prong, Frogge alleges that she previously has
ridden the bus, and thus that she is qualified to receive the
benefit of the service at issue. Id. at 4. Finally, as to the third
prong, Frogge alleges that she submitted a reasonable “deviation
request” for the bus to pick her up in an apartment complex rather
than the bus stop. Id. at 4-6. Although Fox denied the modification
because “there is not an acceptable place to turn a bus,” Frogge
alleges that this is incorrect, and thus that the accommodation
would not have resulted in a “fundamental change” to the service.
Id. Therefore, Frogge has alleged the elements of a discrimination
claim under the ADA. Constantine, 411 F.3d at 498.
IV. CONCLUSION
For the reasons discussed, after conducting a de novo review
of the R&R and the record, the Court:
1)

SUSTAINS Frogge’s objections (Dkt. No. 18);

2)

REJECTS the R&R (Dkt. No. 16);

3)

DENIES Fox’s motion to dismiss (Dkt. No. 4);
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FROGGE V. FOX

1:17CV155

ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO. 16]
4)

DENIES AS MOOT Frogge’s motions for a hearing (Dkt. Nos.
11; 19); and

5)

RECOMMITS this case to Magistrate Judge Aloi, who is
authorized to consider the record and enter rulings or
recommendations as appropriate, including the entry of a
scheduling order on discovery and dispositive motions.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested.
DATED: June 26, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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