Fernandez v. Duke University

• Decision Date: 29 July 2021
• Docket Number: 1:20CV492
• Court: U.S. District Court — Middle District of North Carolina
• Parties: MARY FERNANDEZ, and THE NATIONAL FEDERATION OF THE BLIND, INC., Plaintiffs, v. DUKE UNIVERSITY, Defendant.

MARY FERNANDEZ, and THE NATIONAL FEDERATION OF THE BLIND, INC., Plaintiffs, v. DUKE UNIVERSITY, Defendant.

No. 1:20CV492

United States District Court, M.D. North Carolina

July 29, 2021

MEMORANDUM OPINION AND ORDER

N CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Duke University's Partial Motion to Dismiss [Doc. #14] claims of disability-related discrimination brought by Plaintiffs Mary Fernandez and the National Federation of the Blind, Inc. (“NFB”) (collectively, the “Plaintiffs”). For the reasons below, the motion is granted in part and denied in part.

I.

Plaintiffs' claims arise from Ms. Fernandez's experience as an applicant, student, and now alumnus at Duke's Fuqua School of Business. (Compl. [Doc. #1] ¶ 1.) Plaintiffs alleged in their June 2020 Complaint that Ms. Fernandez-who is blind and a member of the NFB-was denied equal access to various components of Duke's programs and activities in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a). (Compl. at 1, ¶ 1.)

Ms Fernandez applied to Duke's MBA program in November 2017, ultimately selecting the University in part due to assurances from an administrator that it was committed to meeting Ms. Fernandez's accessibility needs. (Id. ¶¶ 17, 30.) Allegedly however, even from her initial application, Ms. Fernandez was confronted with accessibility issues, so that she had to submit a paper rather than an electronic application and expend more time than her sighted peers to do so. (Id. ¶¶ 30-31.) Once enrolled at Duke, Plaintiffs contend that the accessibility issues continued; for example, Ms. Fernandez was unable to access the online mathematics tutorial required for incoming students-even with the assistance of a third-party service Duke hired to support her-so the University waived the course and she did not complete it. (Id. ¶¶ 39-40.) Ms. Fernandez alleges that without completing the tutorial, she lacked the foundation for success in more advanced courses that her classmates received. (Id. ¶ 40.)

Plaintiffs argue similar inequities marked Ms. Fernandez's time at Duke. (Id. ¶¶ 41-93.) Ms. Fernandez found the class registration system inaccessible; other course prerequisites-akin to the math tutorial-were inaccessible; her coursework, despite earlier assurances from University administrators, was not provided in an accessible form, so she relied on classmates or Teaching Assistants or expended more time and energy to prepare for class or complete assignments-if she was able to at all. (See, e.g., id. ¶¶ 41 -44, 69, 71.) She alleges she was also unable to fully access Duke's web-based employer recruiting system (“Alumni Career Portal”), which was the primary method for students and alumni to review and apply for job postings. (Id. ¶ 45.) With respect to the Alumni Career Portal, Plaintiffs contend that Ms. Fernandez had to spend an immeasurable amount of time-and depend on the third-party service-to navigate it but was still unable to use content on the Portal, such as resume books, to connect with the University's alumni network given that the books were displayed as graphics rather than text. (Id.) Plaintiffs believe these issues have and will persist for Ms. Fernandez as an alumnus, following her graduation from Duke. (Id. ¶ 49.) Ms. Fernandez further argues that Duke did not mitigate her accessibility barriers as she went through the associated employment recruiting process: failing to communicate with potential employers regarding her needs, to provide accessible interview preparation materials, and to facilitate accessible networking resources. (Id. ¶¶ 46-49.)

According to the Complaint, the University attempted to address some of Ms. Fernandez's accessibility challenges by, for example, hiring third-party vendors and, at one point, creating its own Braille materials and tactile graphics for her use. (Id. ¶¶ 40, 85, 89-92, 104). However, Plaintiffs allege that Duke failed to fully provide accessible programs and policies, despite the fact Ms. Fernandez made administrators aware of those failures prior to graduation, including filing a complaint with the University's Office of Institutional Equity. (Id. ¶¶ 47, 53, 57, 65, 82, 88.) Thus, Plaintiffs argue, because of the discrimination, Ms. Fernandez made lower grades and took fewer quantitative courses than she could have; spent countless hours trying to solve accessibility issues that otherwise could have been devoted to extracurriculars or other endeavors such as recruiting; and became “emotionally exhausted, depressed, and anxious.” (Id. ¶¶ 104-08.) Though the NFB describes its purpose and activities in detail, (see id. ¶¶ 18-24), it articulated generally the harms it suffered specifically as a result of Duke's actions, namely that it was and is “required to expend limited resources in vindicating the rights and interests of blind students to receive an equal education, as well as blind applicants who seek equal access to a Duke education and blind alumni who are being denied the benefits of Duke's career development services and programs, ” (id. ¶ 119; see also id. ¶¶ 25, 136).

II.

Soon after Ms. Fernandez's May 2020 graduation from Duke, Plaintiffs filed the instant lawsuit in this Court on June 4, 2020, alleging that the University's policies and programs with respect to Ms. Fernandez and other blind students amounted to violations of Section 504 and the ADA. (Id. ¶¶ 109-22, 123-38.) Plaintiffs requested injunctive and declaratory relief for those policies and programs, including the Alumni Career Portal, as well as awards of compensatory damages for Ms. Fernandez and attorneys' fees for Ms. Fernandez and the NFB. (Id. at 37-38.)

Duke then moved to partially dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction and failure to state a claim. (Partial Mot. to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (“Partial Mot. to Dismiss”) [Doc. #14].) Specifically, Duke argues that Plaintiffs' request for injunctive and declaratory relief concerning its policies and practices for students is moot, as is their claim regarding the Alumni Career Portal, which apparently is being replaced, prohibiting standing for both Ms. Fernandez and the NFB. (Id. at 1-2.) Duke also contends that Ms. Fernandez's request for compensatory damages for conduct prior to June 4, 2018 is time-barred-effectively excluding her allegations concerning her Fall 2017 application-given Duke's contention that their claims are subject to a two-year statute of limitations. (Id. at 2.) In support of its argument, Duke submitted a declaration providing information about the Alumni Career Portal replacement and some evidence that accessibility was a consideration when selecting the replacement and that the replacement is “substantially compli[ant]” with accessibility requirements under the Web Content Accessibility Guidelines. (Decl. of Sheryle Dirks, Def.'s Br. in Supp. of Partial Mot. to Dismiss (“Def.'s Br. in Supp.”), Ex. 1 [Doc. #15-1] (“Dirks Decl.”).)

In their Response, Plaintiffs concede that Ms. Fernandez does not have standing to pursue injunctive and declaratory relief for Duke's policies and procedures for students since she is no longer one, (Pls.' Resp. in Opp'n to Def. Duke Univ.'s Partial Mot. to Dismiss at 13 n.2 [Doc. #16] (“Pls.' Resp. in Opp'n”)), but that the NFB has organizational standing on its own to do so, (id. at 6-12). Plaintiffs further contend that the allegations as to the Alumni Career Portal are a justiciable controversy to which both Ms. Fernandez and the NFB on her behalf have standing, and that Ms. Fernandez's request for compensatory damages is not time-barred. (Id. at 12-22.) Plaintiffs attached three declarations to their Response, one of which was from Ms. Fernandez alleging and describing the “accessibility barriers” she “encountered” when she accessed the Alumni Career Portal replacement in August 2020. (Decl. of Mary Fernandez, Pls.' Resp., Ex. 3 [Doc. #16-4] (“Fernandez Decl.”).) The remaining two declarations describe in further detail the NFB's mission and ways in which it seeks to achieve its mission, (Decl. of Mark Riccobono, Pls.' Resp., Ex. 1 [Doc. #16-2] (“Riccobono Decl.”)), and challenge the appropriateness and accessibility of the Alumni Career Portal replacement, (Decl. of Peter Bossley, Pl.'s Resp., Ex. 2 [Doc. #16-3]).

a.

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may contest a court's subject matter jurisdiction through an avenue such as standing. See, e.g., White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005). A defendant may bring such a “challenge in one of two ways: facially or factually.” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). In a facial challenge, “the defendant may contend ‘that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based, ” which, “'in effect, [affords the plaintiff] the same procedural protection [s]he would receive under a Rule 12(b)(6) consideration.'” Kerns, 585 F.3d at 192 (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In that instance, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id. (reciting applicable Rule 12(b)(6) standard); see also Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 212-13 (4th Cir. 2017) (declining to review two declarations and other extrinsic evidence submitted by defendant given defendant brought facial rather than factual challenge).

“On...