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Discrimination under Title II ADA ?

Discussion in 'Civil Court, Procedure & Litigation' started by chromaticsunset, Dec 22, 2019.

  1. chromaticsunset

    chromaticsunset Law Topic Starter New Member

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    Jurisdiction:
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    If I want to sue a college for blatant refusal of reasonable accommodations which caused me to fail the program/getting my degree, what do I need to do first? Should I file a complaint through OCR or should I find a lawyer to do this? I know you need to get a "right to sue" letter, but the standard statute of limitations passed, but in my case I did not discover that the damage was fully done until a few days ago. (They lied to me and told me that they were still giving me my degree). I know there are certain circumstances where the statute can be extended.

    I don't have money to throw $6000 for a retainer fee and I am trying to find someone who would take my case on contingency. I need help
     
  2. cbg

    cbg Super Moderator

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    What accommodation did you request, of whom did you request it, what did they say and how did the failure cause you to fail in getting your degree?
     
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  3. army judge

    army judge Super Moderator

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    You're not going to hire or retain a lawyer on a legal discussion site, just as you wouldn't retain a physician on a health discussion site.

    Good luck.
     
  4. cbg

    cbg Super Moderator

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    While we cannot provide representation, we can comment on the merits if you will provide additional details.
     
  5. chromaticsunset

    chromaticsunset Law Topic Starter New Member

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    I was trying to reply to you before the other person locked the thread. I am legally blind. I had been going to school at this college for 5 years, I had taken almost all of the classes in the hospitality program, my specific concentrations were Culinary Arts and Baking/Pastry Arts.

    I had already been receiving disability support services through the school this entire time. I had accommodations allotted to me, one of them being double time on tests and exams (which I never even needed that close to that much extra time, ever). On the last day of my schooling there, I went in to class to take my practical final for the Baking/Pastry arts program (to receive my Associates of Applied Science, as well as my American Culinary Federation certification.)

    The test had a time limit of 4 hours. I gave my teacher my form from Disability Support to remind her that I have rights to reasonable accommodations and they were already set forth on my file/paper I gave to her (double time). So 4 hours pass, I was almost finished. I had a cake to finish icing and to finish plating up a few things for presentation. No more than 30-40 minutes of work. She stopped. me in my tracks, told me that my time was up. I started to get emotional, reminded her that I AM allotted double time! So, she called her department chair (it was almost 9 pm). He agreed with her and she told me that amount of extended time IS NOT a reasonable accommodation. Rather than fighting with her, I cleaned up and left. There is more to the story as to why I waited to pursue litigation (the school lied to me and pretended to give me my baking degree, and I just found this out a few days ago), but I am giving you a basic synopsis. I am wanting to sue, researching everywhere online, and most things are telling me that the statute of limitations is passed, but I found another law forum that talks about how they can be extended under certain circumstances. I know you have to obtain a right to sue letter, etc. I will try to come up with the money for a lawyer IF it is thought that I have a solid case. Should I get a lawyer or should I file a complaint with the Office of Civil Rights on the US Dept. of Education site? I'm not sure where to start.
     
  6. chromaticsunset

    chromaticsunset Law Topic Starter New Member

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    This discrimination occurred in December of 2016. So now, I wasted 5 years of my life in school, and almost 3 more years in an entry level job, I have no culinary degree or ACF certification, and I have been putting false information on my resumes this entire time (unbeknownst to me). If I would have gotten that extended time, I would have passed that exam and gotten my ACF certification, and would have been able to jump in to a higher paying position as a chef. Now I am stuck in an entry level position that doesn't promote on merit (seniority only) and I want to find a different job, but without the credentials I should have gotten, it will never happen.
     
    Last edited: Dec 22, 2019
  7. cbg

    cbg Super Moderator

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    First of all, you are past the statute of limitations. By a rather considerable amount of time. Second, how do you plan to prove that you would unquestionably have passed, exactly what job you would have gotten and what that hypothetical job would have paid?
     
  8. chromaticsunset

    chromaticsunset Law Topic Starter New Member

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    There are certain instances where the statute can be extended, for example when the person became aware of how the discrimination affected them. I don't know if this pertains to my case, but it may.

    https://www.williamgoren.com/blog/2...6EQEfTFMuz_04e4nxTBTqshm0ZzUZbZwin5uJTwjYOSHQ


    I can prove that I would have passed the test if I was given double time, because I was almost done when she cut me off. I have received mostly As (a few Bs) with NO need for additional accommodations. If I would have gotten my degree and ACF certification after passing that test, I would have been able to apply for a CHEF position, which the starting salary is triple of what I am being paid now.
     
  9. cbg

    cbg Super Moderator

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    Right. You would have been able to APPLY for a chef position. However, not everyone gets every job they apply for,and not everyone starts in the top job they're qualified for. That is not proof that you would have been hired into a chef's position immediately.
     
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    Colleges and universities are not subject to the Americans with Disabilities Act (ADA) with respect to the academic programs they provide to students. Their academic programs are not places of public accommodation under the ADA. Rather, the law that applies is the Rehabilitation Act of 1973 (RA), as amended, which every college or university that accepts federal funds (and nearly all of them do) must follow. Specifically, it is § 504 of the Act that applies to provide you protection from discrimination based on your disability. The RA is the law that the drafters of the ADA used as a model for the ADA so they are similar but there are some differences between them.

    You may file a complaint with the Department of Education Office of Civil Rights (OCR). You need to do that within 180 days of the discriminating event or within 60 days after the final decision of the college after you exhaust your appeal rights within the college.

    But filing a complaint with the OCR is not required prior to filing a lawsuit prior to suing for a RA violation. (The ADA requires filing a complaint with the EEOC and getting a right to sue letter before suing an employer for an ADA violation, but this is not an employment situation.) Thus, you do not need a right to sue letter before filing the lawsuit. See the Department of Education Q &A page which specifically states you need not file a complaint with the OCR before filing the lawsuit.

    The period you have to sue for a violation of the RA is taken from state law as federal law does not specify a statute of limitation for filing the claim. It appears that in Kentucky this would mean you have a 1 year period from the date of the discriminating act or discovery of it to file your compliant in court. The federal appeals court that covers the state of Kentucky explains:

    Under the same Wilson analysis, courts faced with ADA or Rehabilitation Act claims have also looked to the state's statute of limitations for personal injury actions. See e.g., Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409-10 (11th Cir.1998); Soignier v. American Bd. of Plastic Surgery, 92 F.3d 547, 550-51 (7th Cir.1996). Lewis's action is analogous to one for personal injury and governed by the applicable state statute of limitations, Ky.Rev.Stat. Ann. § 413.140(a). In Kentucky, a personal injury claim must be brought within one year after the cause of action accrues. See Ky.Rev.Stat. Ann. § 413.140(a).

    Lewis v. Fayette Cty. Det. Ctr., 211 F.3d 1269 (6th Cir. 2000).

    So you had one year from the date of the alleged violation of the RA to bring your lawsuit in court. You should first exhaust any appeal rights you still have within the college first before suing. You would generally sue in federal court.

    The problem here being that you the discrimination occurred in December 2016. This would mean you needed to bring the claim in court by December 2017 for it to be timely. You are now two years beyond that. You provided a link to a discussion of the statute of limitations (SOL) for ADA claims but it is not the ADA that applies to your situation. It is the RA. You wish to try to toll (extend) the SOL under a principle known as equitable tolling. But with both, the rule for applying equitable tolling in the Sixth Circuit is the following:

    Both the Supreme Court and the Sixth Circuit have repeatedly declined to toll the limitations period where the plaintiffs have failed to demonstrate extreme circumstances. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151-52 (1984); Jones v. General Motors Corp., 939 F.2d 380, 385 (6th Cir.1991); Banks v. Rockwell Int'l North Am. Aircraft Operations, 855 F.2d 324, 326-27 (6th Cir.1988). The Jones court stated that to “successfully raise a claim of equitable tolling, a party must show either fraudulent concealment of the critical facts that would lead one to know that he can sue, or a misrepresentation of those facts-whether made in good faith or not-that was calculated to induce a plaintiff to forego the right to sue.” Jones, 939 F.2d at 385.

    This court has identified five factors to consider when determining the appropriateness of equitable tolling: (1) lack of notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) the plaintiff's reasonableness in remaining ignorant of the particular legal requirement. See Truitt, 148 F.3d at 648. The propriety of applying the principle must be determined on a case-by-case basis. See id.

    Jenkins v. Widnall, 211 F.3d 1269 (6th Cir. 2000). As you can see, it is not easy to win on equitable tolling. You generally have to show that the other party did something to conceal or hide the facts that would give you notice of your claim.

    A federal district court in ruling on a case where a student sued his university under the RA for not providing reasonable accommodation refused to apply equitable tolling explaining:

    Concerning the doctrine of equitable tolling, Cobble asserts in the complaint that he told his professors about his disabilities and requested reasonable accommodations for his classes when he began the program. Compl. ¶ 14, ECF No. 1. He also claims that he appealed his failing grades and cited his professors' failure to adequately accommodate his disabilities in support. Id. ¶ 19. These facts reasonably suggest that Cobble had actual or constructive notice of filing requirements for the ADA and/or the Rehabilitation Act.

    Cobble also does not show that he was diligent in pursuing his rights under the ADA or the Rehabilitation Act. Although he provides facts alleging that he appealed his failing grades using Spalding University's internal grievance procedure, id., the Supreme Court has noted that “the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods.” Del. State Coll. v. Ricks, 449 U.S. 250, 261 (1980). Finally, Cobble does not assert facts that would demonstrate that tolling the statute of limitations would not prejudice Spalding University. Under these circumstances, he cannot meet the requirements for tolling the statute of limitations in the Sixth Circuit.

    Cobble v. Spalding Univ., No. 3:16-CV-00525-CRS, 2017 WL 382245, at *4 (W.D. Ky. Jan. 26, 2017), appeal dismissed, No. 17-5238, 2017 WL 3753975 (6th Cir. June 20, 2017).

    It appears that you knew the University had refused to grant the requested accommodations back in 2016 and knew the grade you got in the course as a result of it. So it appears you had all the facts then that you needed to know to file the lawsuit. That may defeat your attempt to get equitable tolling here, just as it did in the Cobble case.

    If the university nevertheless promised you a degree, you might have a breach of contract or detrimental reliance claim.

    I strongly recommend you see an attorney who litigates RA claims for advice here, and do so ASAP. If you have any equitable tolling case to make you need to file as soon as you have notice of your claim. And if there is no RA claim to go after because of the SOL, you need to promptly see if there is a breach of contract or detrimental reliance claim. Most attorneys will give you a free initial consultation so you have nothing to lose but your time.
     
    Last edited: Dec 23, 2019
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  11. Zigner

    Zigner Well-Known Member

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    To be clear (for the OP) - the statute began running on the date you knew of the act, not the date that you knew of the damage the act caused.
     
  12. Tax Counsel

    Tax Counsel Well-Known Member

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    Actually, that's not right. Even where the statute of limitation time period for a federal claim is borrowed from state law, when the claim accrues is still a matter of federal law. And when applying the discovery rule in federal court, it is the date of injury that matters for when the clock starts to run. In the Kentucky federal district court case I cited earlier involving another disabled student that sued his university for not providing reasonable accommodation, the court said this:

    Under federal law, “[t]he statute of limitations commences to run when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984); see also Rotella v. Wood, 528 U.S. 549, 555 (2000) (“But in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.”). The plaintiff has reason to know of his injury “when he should have discovered it through the exercise of reasonable diligence.” Sevier, 742 F.2d at 273.

    Taking all reasonable inferences in favor of Cobble, he had reason to know of his injuries—that Spalding University failed to accommodate his disabilities and that he was consequently dismissed from the Ed.D Leadership—by January 2015. As described in the complaint, he was denied accommodations for his two courses in the fall of 2014, and he was dismissed from the program in January 2015. Compl. ¶¶ 17–18, ECF No. 1. Therefore, the one-year statute of limitations for his claims based on these two events began to run in January 2015 and expired in January 2016, several months before Cobble filed suit against Spalding University.

    Cobble v. Spalding Univ., No. 3:16-CV-00525-CRS, 2017 WL 382245, at *3 (W.D. Ky. Jan. 26, 2017), appeal dismissed, No. 17-5238, 2017 WL 3753975 (6th Cir. June 20, 2017).

    The problem I see for the OP is that his injury was not the denial of the degree. It was the apparent failing grade given on the exam he took in which he was denied the reasonable accommodation. He presumably knew or should have known the exam grade shortly after the exam, if not immediately after the exam. And from that he should have known he might not get the degree, too.

    It's not clear what the OP means when he says that the college:


    How did the school pretend to give the OP a degree nearly 3 years ago? And how is it that the OP did not at the time verify that he had the degree? It certainly would have been important for him to verify that degree, and he was on notice there might have been a problem with that. So absent something here where the school actually mislead him, I think he'd have trouble asserting that he could not have discovered the problem before the SOL expired and certainly could have discovered it before now, two years after it expired. Still, he should see an attorney who litigates RA claims, lay out all the facts, and see if an argument can be made that the SOL is still open due to the discovery rule. I'm not seeing it, but then I've not reviewed everything involved here in detail.
     
    Last edited: Dec 23, 2019
  13. Zigner

    Zigner Well-Known Member

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    Thank you.
     

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