STENGEL, District Judge.
Dr. Andrew Kortyna, a Lafayette College professor, brought this suit against the College and its former Provost after his request to have his attorney represent him at a school disciplinary hearing was denied. Two students have accused him of sexual harassment. These accusations allegedly caused him to develop debilitating anxiety and depression. Dr. Kortyna believes he cannot represent himself at his disciplinary hearing on these charges because of his mental and emotional condition. The defendants moved to dismiss the complaint under Rule 12(b)(6). For the reasons stated below, I will grant their motion and dismiss the complaint in its entirety.
Lafayette College is a private liberal arts college in Easton, Pennsylvania that receives federal funding. Dr. Andrew Kortyna is a tenured physics professor at Lafayette. He received his Ph.D. in physics in 1993 and began teaching at Lafayette in 2001. Defendant Wendy Hill was the Provost of Lafayette College at the time the plaintiff filed his complaint. She left Lafayette to become the head of The Agnes Irwin School in Rosemont, PA on July 1, 2014.
On September 26, 2013, a senior at Lafayette College — student W — filed a complaint with Provost Wendy Hill accusing Dr. Kortyna of sexually harassing her.
On October 3, 2013, another student — student B — filed a one-sentence complaint of sexual harassment against Dr. Kortyna. This student is allegedly a close friend of student W. On October 4, 2013, Dr. Kortyna "apologized to B for anything he might have done to upset her" during a conversation that "lasted about less than a minute and took place in public in front of the Hugel Science Center which houses Andrew Kortyna's office and laboratory, and all physics labs and classrooms." Several dozen people were within 100 feet of the two.
On October 7, 2013, Dr. Kortyna was given the student complaints, which were later amended. The complaints he received were short and offered no factual explanation or description. Student W alleged that he had harassed her for nearly two years, while student B claimed he had harassed her for several months.
On November 6, 2013, Provost Hill informed Dr. Kortyna that she had rejected student B's complaint but not student W's complaint. Over the next several weeks, Provost Hill allegedly "pressured" Dr. Kortyna to agree to be dismissed from the College. Allegedly, Provost Hill indicated that his agreement to be dismissed from the College would halt the investigations against him. On December 17, 2013, Provost Hill issued two investigative reports. One found possible merit in student W's accusations. The other found that Dr. Kortyna did not harass student B but may have retaliated against her for filing her complaint, based on his conversation with her on October 4, 2013.
On January 3, 2014, Professor Robert Cohn, Chair of Lafayette College's Appeal and Grievance Committee, informed Dr. Kortyna that a hearing committee was being formed to hear the two student complaints. On February 3, 2014, Professor Cohn informed Dr. Kortyna that the Lafayette College Hearing Committee had been formed and the hearing would occur within 21 days. On February 12, 2014, the Lafayette College Hearing Committee then informed Dr. Kortyna that the hearing dates were set for March 5, 2014 and March 6, 2014.
As a result of the complaints made against him, Dr. Kortyna began to experience anxiety attacks and bouts of depression. On October 5, 2013, he collapsed, "was sobbing," and "incoherent." His primary care doctor prescribed him anti-anxiety medication. He had never taken any psychiatric medication before this in his life. On October 23, 2013, Dr. Kortyna suffered another anxiety attack and was prescribed anti-depressant medication by his doctor. Over the next several months, Dr. Kortyna continued to have debilitating attacks, and his medication was increased.
On November 27, 2013, Dr. Kortyna began therapy with psychologist Dr. Robert Chupella for treatment of what he described as a "nervous breakdown" caused by the stress of the unfounded harassment allegations. He was eventually diagnosed with Major Depressive Disorder, Single Episode, Severe without Psychotic Features (DSM Axis I, 296.23), and Panic Disorder without Agorophobia (DSM Axis I, 300.01).
On January 31, 2013, he was evaluated by Dr. Kenneth Weiss, a forensic psychiatrist,
Dr. Weiss diagnosed him with depression and anxiety. Dr. Weiss and Dr. Chupella noted that his condition involved serious impairment, "[t]hough he [was] not disabled from his ordinary teaching duties." He only missed one day of work during this period but began having difficulty concentrating and working on his research.
Allegations of sexual harassment against members of the faculty should be made to the Provost of Lafayette College.
If a negotiated resolution can't be reached, the Provost shall report her conclusions to the complainant and the accused. "At this stage, the accused may elect to have the Provost resolve the matter by accepting the sanctions recommended by the Provost." The alternative is to have the case presented to a Hearing Committee, which is a group of five disinterested tenured faculty members formed to hear the case.
Faculty disciplinary hearings in front of the Hearing Committee look like court proceedings. According to the policies and procedures outlined in the Lafayette's Faculty Handbook, the Provost is responsible for presenting witnesses and evidence against an accused faculty member. The Chair of the Hearing Committee presides over the proceedings like a judge, ensuring that there is a fair presentation of all evidence and an equitable treatment of both parties. The accused faculty member is responsible for presenting his/her case. He/she "may be accompanied only by counsel chosen by him/her from the Faculty or Administration of the College," who may provide advice during the hearing. The proceedings are recorded by a stenographer. The Hearing Committee is permitted access to independent counsel but this counsel is not allowed to attend the hearing itself.
After the hearing is held, the Committee deliberates over what was presented and may determine by a preponderance of the evidence if there was a violation of the sexual harassment policy and what sanctions would be appropriate. The findings of the Committee are then reviewed for fairness by the Hearing Review Committee.
Eventually, the disciplinary proceeding was held on March 25, 2014. Prior to this hearing, Dr. Kortyna requested that his private legal counsel be present at the hearing as an "accommodation" for his mental health condition. The College denied this request. The College did, however, place restrictions on the student complaintants' ability to be at hearing because Dr. Kortyna's inability to function appeared to stem from his being in their presence.
During the hearing, Dr. Kortyna "was unable to cooperate with" his faculty counsel and appeared not to be understanding what his counsel was telling him. Dr. Kortyna's cross examination of W's boyfriend "resulted in an intemperate exchange, and
The following day, Dr. Kortyna requested in writing that the hearing be discontinued "to permit [his] lawyer to work this out with the College's lawyer or for the federal court to rule on an urgent basis" regarding his claims under the ADA. In that written statement, Dr. Kortyna claimed he could not "concentrate" or "engage" in the hearing because he "could not control [his] temper" and was "disoriented, frustrated and angry." He indicated that the most he could do in the hearing would be to "read out loud questions [his] lawyer writes."
On March 28, 2014, Dr. Kortyna was again evaluated by Dr. Weiss. Though he was not having suicidal thoughts, Dr. Kortyna "was thinking of going into a hospital."
On April 1, 2014, the Lafayette College Hearing Committee refused to grant Dr. Kortyna's requested accommodation of having his attorney represent him at the hearing. Instead, the Committee offered the following accommodations: 1) the complaintants will be required to sit on the same side of the table as Dr. Kortyna and to direct their answers to the Committee only so as to "avoid eye contact" with him; 2) Dr. Kortyna may leave the room during the complaintants' direct testimony and may cross-examine them via video or other means, if he is uncomfortable being in the same room as they are; 3) Dr. Kortyna can present written statements from himself and/or other witnesses; 4) Dr. Kortyna can write out questions for direct examination of witnesses that his faculty counsel could read so long as those questions are provided to the Committee first; 5) Dr. Kortyna can cross-examine witnesses after the Committee has asked the witnesses their questions, so that he has time to formulate his cross-examination questions; 6) Dr. Kortyna may ask for a "reasonable break" from the proceedings to be able to prepare cross-examination questions; 7) Dr. Kortyna's faculty counsel could read his cross-examination questions to the witness, if he was unable to do so himself; and 8) Dr. Kortyna's faculty counsel would be permitted to present any other statements that he would like to make after the Committee has reviewed them first, if he felt uncomfortable verbalizing them himself. The Committee and Provost, however, would still be able to verbally cross-examine Dr. Kortyna and his witnesses.
The Committee explained that Dr. Kortyna's request for his personal attorney to be present was not "reasonable" because it "would fundamentally alter the nature of the proceedings and the rights accorded to Complainants and faculty under the Faculty Handbook, and would impose an undue administrative burden on the hearing process." The Committee's letter requested that Dr. Kortyna let them know if these accommodations were acceptable.
On April 10, 2014, the plaintiff filed this suit instead of responding to the Committee's
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint.
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47, 78 S.Ct. 99. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564, 127 S.Ct. 1955. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997); Sterling v. Se. Pa. Transp. Auth., 897 F.Supp. 893 (E.D.Pa.1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
A court "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Card Serv. Ctr., 464 F.3d 450, 456 (3d Cir.2006) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).
The plaintiff claims that Lafayette's failure to modify its disciplinary proceedings to allow his attorney to represent him at the hearing was a violation of Title III of the ADA. No exhaustion is required on a Title III claim. See, e.g., O'Shea v. Interboro School Dist., No. 13-cv-06305, 2014 WL 1673237, at *3 n. 4 (E.D.Pa. Apr. 28, 2014) (citing Burkhart v. Widener Univ., Inc., 70 Fed.Appx. 52, 54 (3d Cir. 2003)) (citations omitted); Estrada v. Trager, No. CIV.A. 01-4669, 2002 WL 31053819, at *7 (E.D.Pa. Sept. 10, 2002); Hill v. Park, No. Civ.A. 03-4677, 2004 WL 180044, at *2-3 (E.D.Pa. Jan. 27, 2004); Moyer v. Showboat Casino Hotel, 56 F.Supp.2d 498, 499 (D.N.J.1999); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir.2007) (explaining how Title I requires exhaustion but Title III does not).
Lafayette argues that his claim is more properly brought under Title I of the ADA, which requires that a complaint first be filed with the Equal Employment Opportunity Commission (EEOC). Title I prohibits employers and other covered entities from discriminating against qualified individuals with disabilities in "the hiring, advancement, or discharge of employees, employment compensation, job training and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
"Terms and conditions of employment are covered under Title I, not Title III." Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir.1998). The Third Circuit explained in Menkowitz v. Pottstown Memorial Medical Center that "it is evident that Congress sought to regulate disability discrimination in the area of employment exclusively through Title I, notwithstanding the broad language of Title III." 154 F.3d 113, 118-19 (3d Cir. 1998). The key to determining whether a claim falls under Title I or under Title III is whether the benefits received have a "nexus" to the place of public accommodation or whether they are related to the
Title I clearly applies in this case. But for the employee-employer relationship, Dr. Kortyna and Lafayette would not be connected. The disciplinary hearing relates to the terms and conditions of his employment as a professor, as outlined in the Faculty Handbook. The alleged discrimination relates to a policy that deals with the possible "discharge" of the plaintiff, falling squarely within the language of Title I.
The plaintiff argues that he may bring his claim under both Title I and Title III. He cites Fletcher v. Tufts Univ., 367 F.Supp.2d 99, 115 (D.Mass.2005), and Carparts Distrib. Ctr. v. Auto. Wholesaler's Ass'n, 37 F.3d 12 (1st Cir.1994), to support this point. Precedent undercuts the plaintiff's argument. As Conners v. Maine Medical Center explains (a case to which the plaintiff also cites for this point), the Third Circuit and First Circuit disagree about the applicability of Title III in certain employment-related disputes. 42 F.Supp.2d 34, 46 (D.Me.1999). In Ford, the Third Circuit specifically rejected the reasoning in Carparts and, instead, adopted the reasoning from the Sixth Circuit's Parker v. Metropolitan Life Ins. Co., 99 F.3d 181 (6th Cir.1996). Ford, 145 F.3d at 613-14 ("We also note that, by aligning ourselves with the Sixth Circuit's Parker decision regarding the definition of `public accommodation[,]' we part company with the First Circuit in this regard.").
The plaintiff argues that the claim falls under Title III because the accommodation involves a "modification of policies."
The plaintiff also argues that Title I does not apply because "reasonable accommodation" as defined under that section does not list "access to a peripheral formal hearing process" as being one of these accommodations.
Lastly, the plaintiff offers several "analogous" cases in which Title III was applied: Menkowitz v. Pottstown Mem. Med. Ctr., 154 F.3d 113, 122 (3d Cir.1998); PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); and Ault v. Walt Disney World Co., 692 F.3d 1212 (11th Cir.2012). These cases are not helpful to the analysis because they do not involve parties engaged in an employer-employee relationship. In both PGA Tour, Inc. and Menkowitz, the disabled individuals were considered independent contractors, not employees, of the covered entities.
Neither the alleged facts of this case nor the precedent in this Circuit support the plaintiff's Title III claim.
The plaintiff also claims that Lafayette's prohibition against his lawyer representing him at the disciplinary hearing violates Section 504 of the Rehabilitation Act. Section 504 "bars both federal agencies and private entities that receive federal funding from discriminating on the basis of disability and is not limited to the employment context." Freed v. Consolidated Rail Corp., 201 F.3d 188, 190 (3d Cir. 2000).
Although the plaintiff's Section 504 claim does not need to be exhausted, the plaintiff fails to state a claim under this Section, as I will explain below.
The standards applied under Title I of the ADA are the standards "used to determine whether this section has been violated." 29 U.S.C. § 794(d).
To state a claim that an employer breached this duty to accommodate, an employee must show that:
Williams, 380 F.3d at 772 (quoting Taylor v. Phoenixville School Dist., 184 F.3d 296, 319-20 (3d Cir.1999)).
From the facts alleged, Lafayette was aware of the plaintiff's disability. Dr. Kortyna requested accommodations for this disability prior to the disciplinary hearing. Lafayette modified the hearing as a result of this request. Lafayette only permitted the complaintants in the hearing during their own testimony because Dr. Kortyna's inability to function stemmed from his being in their presence.
The plaintiff alleges that his mental health diagnosis prevents him from effectively communicating during the disciplinary hearing. Under these conditions, he may need an "interpreter" of sorts — someone to help him communicate.
The plaintiff contends that the accommodations Lafayette offered would constrain his presentation to a "robotic automaton role."
Even viewing these facts in the light most favorable to him, Dr. Kortyna has failed to show a lack of good faith by Lafayette, which is necessary to make out a failure to accommodate claim.
For this reason, the plaintiff has failed to state a claim on which relief can be granted.
In addition to his claims against the College, the plaintiff also asserts an IIED claim against the former Provost Wendy Hill for her role in prosecuting the allegations against him. In the complaint, Dr. Kortyna claims that student W's complaint "did not fit within the Faculty Handbook's definition of sexual harassment" and argues his case in this regard.
The defendant argues that this claim is barred by the Pennsylvania Workers' Compensation ACT (WCA). In Pennsylvania, the WCA provides the exclusive remedy for employee work-related injuries. See 77 P.S. § 481(a); Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir.1997).
"[T]he critical inquiry in determining the applicability of the third-party attack exception is whether the attack was motivated by personal reasons, as opposed to generalized contempt or hatred, and was sufficiently unrelated to the work situation so as not to arise out of the employment relationship." Fugarino v. University Servs., 123 F.Supp.2d 838, 844 (E.D.Pa. 2000). The plaintiff alleges that "there had been tension and disagreement between Andrew Kortyna and Provost Wendy Hill over a number of Lafayette College administrative and academic issues, as to which the Provost strongly expressed opposition to Andrew Kortyna" for a number of years "as well as personal animus."
Even if the WCA did not preclude the IIED claim, it would still fail. To make out a claim for IIED, a plaintiff must show that the defendant's behavior was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (quoting Buczek v. First National Bank of Mifflintown, 366 Pa.Super. 551,
The plaintiff has offered no facts to support the claim that Provost Hill's behavior was "so outrageous" to warrant relief. Provost Hill was required to take student complaints regarding sexual harassment complaints against faculty, as outlined in Lafayette's procedures.
For these reasons, I will dismiss the plaintiff's IIED claim.
For the foregoing reasons, I will grant the defendants' motion to dismiss in its entirety.
Venue is appropriate in this district because the plaintiff and the defendants are located in this district.
42 U.S.C.A. § 12112(a).
42 U.S.C. § 12182(a).
42 U.S.C. § 12182(b)(2)(A)(i)-(iv) (emphasis added).
28 C.F.R. § 36.202.
In Menkowitz, the Third Circuit found that Title III was applicable because the plaintiff did not allege he was an employee of the defendant but instead was more of an independent contractor. Id. at 122. Specifically, Menkowitz held that "a medical doctor with staff privileges one who is not an employee for purposes of Title I-may assert a cause of action under Title III of the ADA as an `individual' who is denied the `full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.'" Id. at 122. Other courts have found that the distinction of whether a person is an independent contractor versus an employee determines whether Title III can apply. See Hetz v. Aurora Med. Ctr. of Manitowoc County, No. 06-C-636, 2007 WL 1753428, at *14 (E.D.Wis. June 18, 2007) (denial of motion to dismiss Title III claim of doctor as independent contractor).
29 U.S.C. § 794(a).
For the purposes of this motion only, the parties agree that the plaintiff is disabled. See Defendants' Memorandum of Law in Support of their Motion to Dismiss Plaintiff's Amended Complaint, Doc. No. 8, Ex. 1 at 10 n. 5. Viewing the facts in the light most favorable to the plaintiff, he appears qualified to perform the essential functions of his job. The question at the heart of this claim is whether Lafayette failed to accommodate his disability.
In addition, the question of reasonableness is one that is determined when both parties engage in the interactive process to find accommodations. See Williams, 380 F.3d at 771-72. While Lafayette has done its part in trying to find a reasonable accommodation, the plaintiff has failed to respond to their proposed accommodations. Instead, he filed this lawsuit. His failure to engage in this interactive process would also preclude his claim. See Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir.2013); Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1173 (10th Cir.1999) (explaining how a plaintiff's failure to engage in the interactive process can preclude his ADA claim).
29 C.F.R. § 1630.9(d).
When an employee refuses to take advantage of a reasonable accommodation made available to him by the employer after this interactive process, the employee is not a "qualified individual" under the ADA. Yovtcheva, 518 Fed.Appx. at 121 (discussing 29 C.F.R. § 1630.9(d)). For this reason too, Dr. Kortyna's claim would fail.
Though this test is factually based and would be one less likely to be determined at the motion to dismiss stage, Lafayette offers seemingly strong evidence that allowing the plaintiff to have an attorney as his advocate could set a bad precedent, which could spill over into future disciplinary proceedings and other types of proceedings at the college. Involving attorneys in the school's internal disciplinary procedures could further complicate the school's disciplinary procedures and encourage parties to "lawyer up." Having lawyers present at these proceedings could also intimidate students who are testifying against faculty. As the College argues, cross-examination of the students by a trained attorney poses a real risk of further victimization of students who may have been sexually harassed by a professor. Given that the school's internal administrative procedures allow for appeals and mistakes to be corrected, the presence of counsel at such proceedings does not appear to be necessary.
Viable IIED claims in the employment context have only been found when the claims involved both sexual harassment and other retaliatory behavior against an employee. Cox, 861 F.2d at 395 (citing Bowersox v. P.H. Glatfelter Co., 677 F.Supp. 307, 311 (M.D.Pa. 1988)).