Frogge v. Fox

Filing 69

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 60 , OVERRULING PLAINTIFFS OBJECTIONS DKT. NO. 61 , 57 , GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. NO. 45 , AND DISMISSING PLAINTIFFS AMENDED COMPLAINT DKT. NO. 3 - 5 WITH PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Thomas S. Kleeh on 6/10/19. (mh) (Copy PS Plaintiff via cert. mail) (Additional attachment(s) added on 6/10/2019: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

VANESSA FROGGE,
Plaintiff,

v.

Civil Action No. 1:17cv155
(Judge Kleeh)

CRAIG FOX, d/b/a Mountain
Line Transit Authority,
Defendant.

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 60], OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 61, 57], GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. NO. 45], AND DISMISSING
PLAINTIFF’S AMENDED COMPLAINT [DKT. NO. 3-5] WITH PREJUDICE
Pending before the Court is a Report and Recommendation
(“R&R”) by United States Magistrate Judge Michael J. Aloi (“Judge
Aloi”) [Dkt. No. 60]. For the reasons stated below, the Court
hereby ADOPTS the R&R in its entirety.
I.
Plaintiff,

Factual and Procedural Background
Vanessa

Frogge

(“Plaintiff”

or

“Frogge”),

initiated this case by filing a pro se complaint in the Magistrate
Court of Monongalia County in Morgantown, West Virginia, on April
20, 2017 [Dkt. No. 3-1 at 1].

On June 2, 2017, Defendant Craig

Fox, d.b.a. the Mountain Line Transit Authority (“MLTA”) timely
filed a notice of removal of Plaintiff’s suit to the Circuit Court

of Monongalia County under W. Va. Code § 50-4-8, at which time the
Circuit Court assumed control of the matter [Dkt. No. 3-1 at 3034].

At the same time, Defendant filed a Motion to Dismiss

Plaintiff’s Complaint, arguing that the Complaint was in violation
of W. Va. Code §§ 29-12A-13; 29-12A-6(d) [Dkt. No. 4-1 at 2].

The

Court heard argument on Defendant’s Motion to Dismiss on August
15, 2017 [Id.].

The Court ordered Frogge to file an amended

complaint within twenty (20) days of the hearing [Dkt. No. 4-1 at
2].

Plaintiff filed an Amended Complaint against Defendant in the

Circuit Court of Monongalia County, West Virginia, on August 29,
2017 [Dkt. No 3-5].
The Amended Complaint alleged a claim for discrimination
against Defendant, Craig Fox, pursuant to Title II of the Americans
with Disabilities Act of 1990 (“ADA”) [Dkt. No. 3-5].
alleges

that

Defendant

discriminated

against

her

Plaintiff
as

“an

opinionated individual acting on his/her own behalf” when he denied
her “Route Deviation Request” in December 2016, and that the
conduct “was outside the scope of his employment as a government
official” [Dkt. No. 3-5 at 9].
The case was removed to the United States District Court for
the Northern District of West Virginia on September 8, 2017. On
September 15, 2017, Defendant filed a Motion to Dismiss [Dkt. No.
4].

A Roseboro Notice was issued to Plaintiff on October 25, 2017.

On November 6, 2017, Frogge, filed a response to Defendant’s motion
2

and a Request for Pro Se Packet [Dkt. No. 12].
file a reply.
finding

no

Defendant did not

After consideration of the parties’ filings, and

hearing

deemed

necessary,

the

magistrate

judge

recommended that the Motion to Dismiss be granted [Dkt. No. 16].
Upon review of the magistrate judge’s R&R of February 27, 2018
[Dkt.

No.

16],

and

liberally

construing

Plaintiff’s

Amended

Complaint, the Court found that Frogge alleged sufficient facts to
survive a motion to dismiss and it rejected the R&R [Dkt. No. 20].
The matter was recommitted to Magistrate Judge Aloi to consider
the record and enter rulings or recommendations as appropriate
[Id.].
In her initial Complaint, filed in the Magistrate Court of
Monongalia County in Morgantown, West Virginia, Frogge asserted a
claim

of

discrimination

against

Defendant

Craig

Fox,

d.b.a.

Mountain Line Transit Authority and sought $10,000 in damages [Dkt.
No. 3-1 at 1].

In the Amended Complaint, Frogge brings a claim of

discrimination against Defendant, Craig Fox, pursuant to Title II
of the Americans with Disabilities Act of 1990 (“ADA”) [Dkt. No.
3-5].

Plaintiff

Defendant

Fox

alleges

that

discriminated

within

against

his
her

official
as

“an

capacity,

opinionated

individual acting on his/her own behalf” when he denied her ‘Route
Deviation Request’ in December 2016 and that such conduct “was
outside the scope of his employment as a government official” [Dkt.
No. 3-5 at 9].
3

According to her Amended Complaint, Frogge suffers from a
neck condition and lives in an apartment complex on Scott Avenue
in Morgantown, West Virginia.
request

to

established

Mountain
at

the

apartment complex.

Line,
top

She submitted a route deviation

asking

of

the

for

hill,

a

new

bus

presumably,

stop

to

within

be
her

She further alleges that “there is no sidewalk

connecting [her] apartment to a hill and several flights of stairs
leading to the [existing] bus stop” [Dkt. No. 3-5 at 8].

She also

alleges that when Defendant conducted a site visit to consider the
proposed deviation request, he failed to include consideration for
her

disability

[Id.].

Defendant

denied

Plaintiff’s

request

determining that the roads in Frogge’s apartment complex were too
small and did not have an acceptable place for the bus to turn
around.

Defendant further determined that fundamental changes

would have significantly impacted other passengers on the route
[Dkt. No. 3-5 at 5, 6].
II.

STANDARD OF REVIEW

Defendant’s Motion for Summary Judgment [Dkt. No. 45] is
brought pursuant to Rule 56(c) of the Federal Rule of Civil
Procedure.

Under Rule 56(c),

A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record,
including
depositions,
documents,
electronically
stored
information,
affidavits
or

4

declarations,
stipulations
.
.
.
admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c).
Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); see also Hunt v. Cromartie,
526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169
(4th Cir. 2014).

A “material fact” is a fact that could affect

the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986); News & Observer Publ’g Co. v. Raleigh-Durham
Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).

A “genuine

issue” concerning a material fact exists when the evidence is
sufficient to allow a reasonable jury to return a verdict in the
nonmoving party’s favor.

FDIC v. Cashion, 720 F.3d 169, 180 (4th

Cir. 2013); News & Observer, 597 F.3d at 576.
Thus, a summary judgment motion should be granted if the
nonmovant fails to make a showing sufficient to establish the
existence of an essential element of his claim or defense upon
which he bears the burden of proof.

Celotex, 477 U.S. at 323.

That is, once the movant shows an absence of evidence on one such
element,

the

nonmovant

must

then
5

come

forward

with

evidence

demonstrating there is indeed a genuine issue for trial.
323-324.

Id. at

The existence of a mere scintilla of evidence supporting

the nonmovant’s position is insufficient to create a genuine issue;
rather, there must be evidence on which a jury could reasonably
find for the nonmovant.

Anderson, 477 U.S. 252.

When determining

whether summary judgment is appropriate, a court must view all
factual

evidence

and

any

reasonable

inferences

to

be

drawn

therefrom, in the light most favorable to the nonmoving party.
Hoschar, 739 F.3d at 169.
In considering a motion for summary judgment, the court will
not “weigh the evidence and determine the truth of the matter,”
Anderson, 477 U.S. at 249, nor will it make determinations of
credibility.

Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

If disputes over a material fact exist that “can be resolved only
by a finder of fact because they may reasonably be resolved in
favor

of

either

party,”

summary

judgment

is

inappropriate.

Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails
to make a showing sufficient to establish the existence of an
element essential to that party’s case,” then summary judgment
should be granted because “a complete failure of proof concerning
an essential element . . . necessarily renders all other facts
immaterial.”

Celotex, 477 U.S. at 322-323.

6

III. DISCUSSION
As

stated,

this

matter

is

pending

on

the

Report

and

Recommendation of Magistrate Judge Aloi, recommending that the
Court grant Defendant’s Motion for Summary Judgment [Dkt. No. 45].
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
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)).
se pleadings.

Moreover, the Court must liberally construe pro

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 Defendant’s Motion for Summary Judgment [Dkt. No. 45] should
be GRANTED in its entirety, that Plaintiff’s Amended Complaint
[Dkt. No. 3-5] be DISMISSED WITH PREJUDICE, and that this case be
STRICKEN from the Court’s active docket.
A.

Public Entity
Plaintiff alleges a violation of Title II of the ADA, 42

U.S.C. § 12132, which 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 subject to
7

discrimination by any such entity.”
entity”

includes

“any

42 U.S.C. § 12132.

department,

agency,

special

A “public
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-12-1789, 2012 WL 6021370, at *5 (D. Md. Dec. 3,
2012).

But “a suit against a state official in his or her official

capacity . . . is no different from a suit against the State [or
public entity] itself.”

Will v. Michigan Department of State

Police, 492 U.S. 58, 71 (1989).
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

disability.”

discriminated

against,

on

the

basis

of

her

Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 498 (4th Cir. 2005).

“The ADA defines a

disability, in part, 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
8

program if she ‘with or without reasonable modifications . . .
meets the essential eligibility requirements for’ participation in
the 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
need not make a modification that would “fundamentally alter the
nature of the service, program, or activity.”

28 C.F.R. § 35.130;

see also Tennessee v. Lane, 541 U.S. 509, 531-32 (2004)(explaining
that Title II does not require a public entity to employ any and
all means to make services accessible to persons with disabilities,
and it does not require states to compromise their essential
eligibility criteria for public programs).
C.

Analysis
With its Motion for Summary Judgment [Dkt. No. 45], Defendant

argues

that

Plaintiff’s

condition
9

does

not

meet

the

ADA’s

definition of “disabled.”

While Defendant does not dispute that

Plaintiff has a neck and back condition, it argues that she has
failed to demonstrate that the condition “substantially limits one
or more” of her “major life activities.”
has

no

medical

restrictions

on

Defendant asserts Frogge

her

lifestyle,

ambulates

independently, and merely as “some difficulty” walking up hill,
playing basketball, and jumping rope [Dkt. No. 46 at 10].
Defendant

further
of

argues

that

intentional

no

evidence

discrimination

or

supports

Plaintiff’s

claim

disparate

treatment.

Plaintiff testified at deposition that she did not

know why there was discrimination, only that she believed there to
have been discrimination [Dkt. No. 46 at 12].

Defendant also

contends that it properly demonstrated another reason for the
denial

of

Plaintiff’s

route

deviation

request

–

Defendant’s

inability to restructure the nature of the bus route.

As support,

Defendant cites the Code of Federal Regulations applicable to the
Department of Transportation.
of

a

modification

to

a

These regulations allow the denial

service

when,

as

in

this

case,

a

modification would significantly alter the nature of a program or
service [Dkt. No. 46 at 14-15]; see also 49 C.F.R. § 37.169(c).
Finally,

Defendant

argues

that

immunity.

10

it

is

entitled

to

qualified

Plaintiff filed Objections 1 [Dkt. No. 18] to the magistrate
judge’s February 27, 2019, R&R on Defendant’s Motion to Dismiss,
stating that she “never assumed to know the reason why Craig Fox
discriminated against [her] by denying [her] request]” [Dkt. No.
18 at 3].

Frogge argues that “the only way he could have come to

the conclusion to deny my request was if [Defendant] acted outside
of government regulations.

Hence, he acted with bias forming his

own opinion versus within the exceptions of his employment.

That,

more specifically, is the act of discrimination; Craig Fox knew
the rules & chose to omit them” [Id. at 6].

Plaintiff states

“despite the small roads all over Morgantown & bus routes, the 5
minutes it would take to pick [her] up & the different sized buses
that could have been utilized, including a van (New Fit), she was
not even offered limited deviation assistance with smaller buses”
[Id. at 7].

Plaintiff claims that her “previous deviation request

included uncanny, similar circumstances with a small road & parking
lot,” and was granted 2 [Id.].

1

While Plaintiff titled her pleading “Objections to a Report and
Recommendation,” Plaintiff specifically incorporates the document as a Response
to Defendant’s Motion for Summary Judgment [Dkt. No. 57]. Plaintiff filed a
document on April 26, 2019 [Dkt. No. 61], titled “Response to Judge Aloi’s
Report,” which followed the R&R issued by the magistrate judge on April 12,
2019 [Dkt. No. 60]. The Court construes Plaintiff’s letter response [Dkt. No.
61] as an objection to the R&R.
2 In September 2015, Plaintiff made a deviation request of Defendant which
identified the location of the requested deviation as follows:
“Kroger’s
Grocery Store off of Patteson, across from Rite Aid, UPS Store, & Volcano Sushi:
Parallel to WVU Alumni Building off of University Ave./Alumni Drive” [Dkt. No.
46-1 at 51]. The 2015 deviation request was approved after a site visit [Id.].
Nothing in the record indicates that the location at issue in September 2015
was similar or comparable to the location identified by Plaintiff in her
December 2016 request.

11

Defendant argues that Plaintiff offers no support for her
conclusory

statements

regarding

the

alleged

discrimination.

Specifically, Plaintiff offers no support for her belief that
Defendant could utilize a smaller bus, that MLTA granted a previous
and similar deviation request for convenient access, or that the
only reason her deviation request could have been denied was
because of discrimination.

Defendant contends that Plaintiff’s

claims are not supported by facts or evidence in the record.
Defendant

also

argues

that

Frogge’s

new

Title

VI

claim

for

discrimination based on race is not in the Amended Complaint or
supported by evidence. 3
1.
At

Defendant is a public entity
the

motion

to

dismiss

stage,

Defendant

argued

that

Plaintiff did not sue Defendant Fox in his official capacity, and
the Court found that position unpersuasive.

Defendant concedes

that Mountain Line is an instrumentality of Monongalia County,
West Virginia, organized to provide public transportation [Dkt.
No. 4-1 at 5].

Indeed, Defendant’s letterhead, on which Plaintiff

received her notice of denial, states that “Mountain Line is the
business

name

of

the

Monongalia

3

County

Urban

Mass

Transit

In her March 26, 2019, filing [Dkt. No. 57], Plaintiff discusses a Title VI
discrimination claim.
Nowhere in the pleadings has Plaintiff presented any
allegation that the alleged discrimination she suffered was a result of her
race or ethnicity. Even assuming the facts in the light most favorable to the
Plaintiff, the Court cannot find that Plaintiff has alleged any circumstances
that would support a claim under Title VI.

12

Authority” [Dkt. No. 46-1 at 53].

Plaintiff brought her claim

against Defendant Fox, as Operations Supervisor, who was “doing
business as the Mountain Line Transit Authority” [Dkt. No. 1-1 at
1]. Consistent with the prior ruling that Plaintiff sued Defendant
in his official capacity, the Court FINDS that Plaintiff’s ADA
claim was brought against a public entity – that is, Defendant Fox
in his official capacity and as employee of a public entity.

Will,

491 U.S. at 71; Estelle, 429 U.S. at 106.
2.

Plaintiff is not disabled under the definition of the
Americans with Disabilities Act

The

ADA

defines

“disability”

as

“a

physical

or

mental

impairment that substantially limits one or more of the major life
activities of such individual.”
as

“significantly

restricted

“Substantially limits” is defined
as

to

the

condition,

manner

or

duration to the condition, manner, or duration under which the
average person in the general population can perform that some
major life activity,” or the inability “to perform a major life
activity that the average person in the general population can
perform.”

29 C.F.R. § 1630.2(j)(l)(ii).

“Examples of ‘major life

activities’ are ‘caring for oneself, performing manual tasks,
walking,

seeing,

working.’”

Id.

hearing,

speaking,

breathing,

learning,

and

Some limitation in “major life activities” does

not always equal a substantial limitation.”
F. Supp. 2d 660 (D. Md. 2002).

13

Stewart v. Weast, 228

That Plaintiff has a physical impairment is not at issue.
Plaintiff

testified

that

she

suffers

from

degenerative

disc

disease of the neck [Dkt. No. 46-1 at 9], and there is no evidence
in the record to suggest otherwise.

Defendant states that it does

not contest this allegation [Dkt. No. 46 at 7].

However, to

qualify as a disability, this condition must “substantially limit
one or more” of Plaintiff’s major life activities.
No

evidence

before

the

Court

shows

that

Plaintiff

is

substantially limited in a major life activity by her condition.
As Defendant notes, there is no evidence that Plaintiff is unable
to walk from her door step to Scott Avenue to utilize the bus stop.
There is also no evidence about Plaintiff’s inability to walk
generally, and no evidence that Plaintiff’s walking is restricted
by a physician.

Plaintiff failed to present specific evidence to

establish her condition as an impairment that substantially limits
the major life activity of walking, and she admitted in her
deposition that the only major life activity implicated by her
claim is the ability to walk 4 [Dkt. No. 46-1 at 22, Exh. B at
74:22-77:5].

Plaintiff conceded that no physician had placed any

4

See Dkt. No. 46-1 at 22 (Q: You’re not claiming that you cannot walk to the
bus stop; is that correct? A: That is around the discrimination. That is part
– I would say, yes, it is part of the claim because if I had the deviation
request I wouldn’t have to walk up the mountain to the bus stop from where my
apartment is. If I had the deviation request it wouldn’t be me having to walk
up a hill to go to the bus stop.”)

14

medical restrictions on her associated with her ability to walk
[Id. at Exh. B at 57:15-60:12].
At deposition, Frogge testified as follows:
Q:
A:
Q:
A:

Okay. Has anyone ever told you you shouldn’t climb
stairs with your condition.
I don’t recall any lower body restrictions at all.
So no doctors told you you can’t walk under your
conditions?
No, I don’t think so.

. . .
Q:
A:

Q:

A:

Has anyone told you you can’t ambulate?
Not that I – not that I recall. The terms sounds
familiar but I don’t recall anyone telling me that
I cannot walk or
ambulate.
Has any doctor instructed you you should be walking
on the sidewalks and not in the road or in the
grass?
None that I can recall.

. . .
Q:
A:
Q:
A:

Does that say “Can ambulate independently”?
It does.
And is “yes” circled?
It is.

[Dkt. No. 46-1 at 18-25].
While

Plaintiff’s

testimony

indicates

that

she

has

some

limitation in walking up hills and in the snow [Dkt. No. 46-1 at
22], these limitations do not equate to a substantial limitation
in her ability to walk.

See Fink v. Richmond, 405 Fed. App’x 719

(4th Cir. 2010)(finding there was no genuine issue of material fact
when plaintiff was only limited in walking quickly or for long
distances and thus not disabled under the ADA); Stewart v. Weast,

15

228 F. Supp. 2d 660 (D. Md. 2002); see also Harmon v. Sprint United
Management Corp., 264 F. Supp. 2d 964 (D. Kan. 2003)(finding that
plaintiff can walk half a mile, sit for up to five hours, lift up
to

100

pounds,

and

has

no

physician

restrictions

other

than

“prolonged” walking, sitting, or standing, as insufficient to
classify plaintiff as disabled); Miller v. Wells Dairy, Inc., 252
F. Supp. 2d 799 (N.D. Iowa 2003)(ability to walk well on level
surface, but ability to walk less than previously could, walk up
three steps, and need to walk slower does not render plaintiff
disabled); Zuppardo v. Suffolk County Vanderbilt Museum, 19 F.
Supp. 2d 52 (E.D.N.Y. 1998)(ability to walk more than 1/8th of a
mile without stopping rendered plaintiff not disabled within the
definition of the ADA); and Banks v. Hit or Miss, Inc., 996 F.
Supp. 802 (N.D. Ill. 1998)(plaintiff’s ability to walk unassisted
without use of cane or crutch, lack of medical restrictions, and
failing to provide any specific facts or evidence to show that
plaintiff’s

walking

was

substantially

limited

weighs

against

plaintiff).
The Court adopts the recommendation of the magistrate judge
and FINDS that Plaintiff has failed to make a showing of fact that
her

condition

substantially

limits

her

ability

to

walk,

and

therefore, that she is disabled under the ADA. 5

5

While the Court finds that Plaintiff has not satisfied a necessary threshold
requirement for her public accommodations ADA claim, it will nevertheless

16

3.

Plaintiff was qualified to receive the benefits of
public service, program, or activity

A plaintiff is “qualified” if she is “an individual with a
disability who, with or without reasonable modifications to rules,
policies, or practices, . . . meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.”
12131(2).

42 U.S.C. §

Regardless of disability, there is no dispute as to

whether Plaintiff is permitted to use the public transportation
system, or whether she is eligible to submit a deviation request
and potentially benefit from a deviation.

Therefore, there is not

a factual dispute as to the second prong.

See Frogge v. Fox, No.

1:17-cv-155, 2018 WL 3132604, at *3 (N.D.W. Va. June 26, 2018)(slip
copy).
4.

Plaintiff was not excluded from participation in or
denied the benefits of such service, program, or
activity on the basis of disability

Plaintiff claims that she was denied the deviation request
from MLTA as a result of her disability [Dkt. No. 46-1 at 754].
The deviation requests submitted by Frogge are in the record before
the Court and confirm the denial of her December 2016 request 6 [Id.

continue its analysis of the claim and the summary judgment record given
Plaintiff’s status as a pro se litigant.
6 Plaintiff sought a deviation request from Defendant in September 2015 which
identified the location of the requested deviation as follows:
“Kroger’s
Grocery Store off of Patteson, across from Rite Aid, UPS Store, & Volcano Sushi:
Parallel to WVU Alumni Building off of University Ave./Alumni Drive” [Dkt. No.
46-1 at 51]. The 2015 deviation request was approved after a site visit [Id.].
Plaintiff submitted the deviation request that is now at issue on December 28,
2016, and identifies the following as the location:
“Into the Cedar Glen

17

at 53, 55, 57].

Thus, there is no factual dispute that Plaintiff

was denied the benefit of a service deviation that Mountain Line
offers [Id. at 74, 53].
The

Court

must

determine

whether

Plaintiff’s

alleged

disability was the basis of or “played a ‘motivating role’” in
Defendant’s denial of her deviation request.

See Thompson v. Va.

Dept. of Game and Inland Fisheries, No. 1:06-cv-65, 2007 WL 984225,
at *3 (W.D. Va. March 30, 2007)(citing Baird v. Rose, 192 F.3d
462, 470 (4th Cir. 1999)).

The Fourth Circuit Court of Appeals

has recognized “three distinct grounds for relief” as to this
element

of

an

ADA

claim:

1)

intentional

discrimination

or

disparate treatment, 2) disparate impact, and 3) failure to make
reasonable accommodations.

A Helping Hand, LLC v. Baltimore

County, 515 F.3d 356, 362 (4th Cir. 2008).

Defendant argues that

the decision to deny Plaintiff’s request was based on the inability
of

a

large

bus

to

safely

maneuver

down

Madeline

Circle

to

Plaintiff’s residence, and then to turn around and exit Plaintiff’s
apartment complex.

Defendant also states that it did not have the

ability to change the size of the bus due to the large population
that utilizes the Green Line Route, the bus route at issue.

Apartment Complex, toward the right (second to last set of townhomes at the
bottom of the hill) #39 *New Request due to move; see previou[s] request*” [Dkt.
No. 46-1 at 55]. The second request was denied by letter dated December 30,
2016 [Dkt. No. 46-1 at 53]. The denial letter explained “[u]pon inspection of
this facility, bus service fronts this complex and there are several riders
that use this stop to access our service.
Unfortunately, the stop at the
entrance of Cedar Glen is as close as we can get to your residence” [Id.].

18

Plaintiff claims that “the only way [Defendant] could have come to
the conclusion to deny my request was if he acted outside of
government regulations.

Hence, he acted with bias forming his own

opinions versus within the expectations of his employment” [Dkt.
No. 57 at 6].

Plaintiff offers nothing outside of her belief as

evidence that her deviation request was denied on the basis of
discrimination.
i.

Intentional or Disparate Treatment

As the magistrate judge notes in the R&R, Plaintiff states
that

she

“never

assumed

to

know

the

reason

why

Craig

Fox

discriminated against me by denying my request” [Dkt. No. 57 at
3]; see also [Dkt. 46-2 at 43].

Plaintiff has not demonstrated

any fact that shows Defendant intentionally discriminated against
her because of her disability.

There is no genuine issue of

material fact for trial as to whether Plaintiff was subjected to
intentional discrimination.
ii.

Disparate Impact

A disparate impact claim is one where there are practices
that appear facially neutral, but harshly affect one group more
than another.

Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).

Plaintiff does not allege that MLTA treats any group differently
when it considers deviation requests, but that she, as a disabled
person, is being more harshly affected than non-disabled people.

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Accordingly, there exists no genuine issue of material fact as to
a disparate impact claim.
iii. Reasonable Accommodation
Plaintiff alleges that Defendant did not provide a reasonable
accommodation 7 based on her belief that the specific deviation she
requested was reasonable and capable of being accomplished.
“reasonable

accommodation”

is

“one

that

gives

the

A

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 Choate, 469 U.S. 287,
301 (1985)).
The Department of Transportation allows for a request for
modification as to the accessibility of transportation services
for those who are disabled.

49 C.F.R. § 37.169.

Requests for modification of a public entity’s policies
and practices may be denied only on one or more of the
following grounds:
(1) Granting the request would fundamentally alter the
nature
of
the
entity’s
services,
programs,
or
activities;
(2) Granting the request would create a direct threat to
the health or safety of others;

7

For the purpose of public accommodations ADA claims under Title II, the term
“reasonable accommodations” is derived from the employment discrimination
provisions of Title I of the ADA, and is essentially synonymous with the term
“’reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of
auxiliary aids and services.””
See 42 U.S.C. § 12131(2).
Reasonable
modifications are what Title II of the ADA requires a public entity to provide.
See Ash v. Md. Transit Admin., No. ELH-18-1216, 2019 WL 1129439, at *5 (D. Md.
March 12, 2019)(citations omitted).

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(3) Without the requested modification, the individual
with a disability is able to fully use the entity’s
services, programs, or activities for their intended
purpose.
49 C.F.R. § 37.169(c).
The record before the Court demonstrates that Plaintiff has
no

experience

driving

a

commercial

vehicle,

does

not

have

a

commercial driver’s license, has never driven an 18-wheeler or
bus, and has no expertise when it comes to driving or maneuvering
a passenger bus [Dkt. No. 46-1 at 7-8].

Plaintiff provides no

factual support for her allegation that Defendant failed to provide
a reasonable modification based on her disability, and instead
relies solely on her belief that a smaller bus or van could be
utilized for the particular route on which Plaintiff’s residence
is located.

Based on this personal belief, Plaintiff feels that

Defendant’s denial of the December 2016 deviation request must
have been discriminatory.
Defendant has demonstrated that Plaintiffs’ deviation request
was based on MLTA’s inability to alter the bus route.
also

established

that

Plaintiff’s

request

would

Defendant
require

a

significant alteration to the nature of the transportation service
provided

by

Defendant.

Evidence

produced

by

Defendant

demonstrates that the requested deviation would alter the nature
of the service, program, or activity, and that a full-sized bus
would be unable to safely maneuver the road to and from Plaintiff’s

21

residence, an apartment complex with only one point of entry and
exit.
that

After evaluating Plaintiff’s request, Defendant determined
the

Green

Line

Route,

which

services

the

Cedar

Glen

Apartments, requires a full-size bus due to the large population
serviced by the route.

Furthermore, there is a bus stop on Scott

Avenue which is adjacent to Plaintiff’s apartment complex on
Madeline
Defendant

Circle,

a

dead-end

determined

that

road.

a

After

full-sized

a

bus

site

inspection,

could

not

safely

maneuver in to and around Madeline Circle and exit on to Scott
Avenue.

Plaintiff has not produced evidence to demonstrate that

Defendant denied her a reasonable accommodation by failing to
utilize another bus or van to access her residence.
Accordingly,

the

summary

judgment

record

suggests

that

Plaintiff’s alleged disability was neither considered by Defendant
nor a motivating factor in MLTA’s denial of Plaintiff’s December
2016 deviation request. 8

Due to applicable DOT regulations and

the specific location and characteristics of Plaintiff’s apartment
complex,

Defendant

would

have

rejected

Plaintiff’s

deviation

request regardless of her health conditions or disability.

No

genuine issue of material fact exists as to the ADA claim alleged

8

In fact, the record suggests the opposite. Defendant granted Plaintiff’s
deviation request in 2015 after a site visit revealed such a deviation was
feasible – unlike the deviation request at issue here. Regardless, it is
illogical to believe Defendant harbors discriminatory animus toward Plaintiff
on any basis, including unlawful disability discrimination, when it previously
granted her the deviation she requested under drastically different
circumstances.
Such discriminatory tendencies are not as easily ignored as
Plaintiff suggests.

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by Plaintiff in her Amended Complaint and argued in her pleadings;
accordingly, the Court FINDS that Defendant is entitled to summary
judgment as a matter of law.
CONCLUSION
For the reasons stated above, the Court:
1.

ADOPTS the Report and Recommendation in its entirety
[Dkt. No. 60], recommending that Defendant’s Motion for
Summary

Judgment

Plaintiff’s

[Dkt.

Amended

No.

Complaint

45]

be

[Dkt.

granted
No.

3-5]

and
be

dismissed with prejudice;
2.

OVERRULES Plaintiff’s Objections [Dkt. Nos. 61, 57];

3.

GRANTS Defendant’s Motion for Summary Judgment [Dkt. No.
60];

4.

DISMISSES WITH PREJDICE Plaintiff’s Amended Complaint
[Dkt. No. 3-5]; and

5.

STRIKES this case from the Court’s active docket.

If the Plaintiff should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk
of Court to enter a separate judgment order and to transmit copies

23

of both orders to counsel of record and to the pro se Plaintiff,
certified mail, return receipt requested.
DATED: June 10, 2019

_____________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

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