Isaacs v. Trs. of Dartmouth Coll.

• Decision Date: 24 October 2017
• Docket Number: Civil No. 17-cv-040-LM
• Citation: 2017 DNH 230
• Parties: Dr. Jeffrey Isaacs v. Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center
• Court: U.S. District Court — District of New Hampshire

2017 DNH 230

Dr. Jeffrey Isaacs v. Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center

Civil No. 17-cv-040-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

October 24, 2017

ORDER

Asserting claims that arise from a decision by the New Hampshire Board of Medicine ("Board") to reprimand him, after he was dismissed from a residency program in psychiatry operated by Dartmouth-Hitchcock Medical Center ("DHMC"), Dr. Jeffrey Isaacs has sued the Board, DHMC, and the Trustees of Dartmouth College ("Trustees"). As a result of a previous order, this case now consists of: (1) substantive and procedural due process claims, brought by means of 42 U.S.C. § 1983, against the Board's attorney, its Administrator, and the individual members of the Board (Count I);¹ (2) a disability discrimination claim under Title II of the Americans With Disabilities Act ("ADA"), see 42 U.S.C. § 12132, against the Board (Count III); (3) an ADAretaliation claim, see 42 U.S.C. § 12203, against the Board (Count IV); (4) a claim for prospective injunctive relief against the Board (Count V); and (5) an ADA retaliation claim against DHMC and the Trustees (Count VIII). Before the court are: (1) plaintiff's response to an order directing him to show cause why Counts IV and VIII should not be dismissed for failure to exhaust administrative remedies; (2) the Board's motion to dismiss plaintiff's First Amended Complaint ("FAC"); and (3) the Trustees' motion to dismiss the FAC. For the reasons that follow, both motions to dismiss are granted. But before turning to those motions, the court addresses ADA exhaustion, which is the subject of the parties' show cause briefing.

I. ADA Exhaustion

Count IV asserts an ADA retaliation claim against the Board, and Count VIII asserts an ADA retaliation claim against DHMC and the Trustees. In its show cause order, the court noted that in Rivera-Díaz v. Humana Insurance of Puerto Rico, Inc., the court of appeals held that

[c]laims of employment discrimination and retaliation under the ADA are subject to the procedural requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 to -9. See 42 U.S.C. §§ 12117(a), 12203(c); Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 142 (1st Cir. 2012). Under this procedural regime, litigation "is not a remedy of first resort" for either discrimination or retaliation cases. Jorge [v. Rumsfeld], 404 F.3d [556,] 558-59 [(1st Cir. 2005)]. Rather, a would-be plaintiff mustfirst exhaust his administrative remedies. This task embodies "two key components: the timely filing of a charge with the EEOC and the receipt of a right-to-sue letter from the agency." Id.

748 F.3d 387, 389-90 (1st Cir. 2014). In his response to the show cause order, which incorporates by reference his objection to the Board's motion to dismiss, plaintiff argues that because his retaliation claims arise under Titles II and III of the ADA rather than Title I, he was under no obligation to exhaust administrative remedies before bringing those claims in court.

Of course, plaintiff's retaliation claims do not arise under Titles II and III; like all ADA retaliation claims, they arise under 42 U.S.C. § 12203, which was enacted under Title V of the ADA.² That said, the distinction that plaintiff draws between Title I of the ADA and Titles II and III does have some bearing on the exhaustion question.

In Rivera-Díaz, the plaintiff brought a Title I disability discrimination claim against his former employer, and a Title V retaliation claim that was based upon allegations that his former employer had taken adverse actions against him in response to his having asserted his rights under Title I of theADA.³ The court held that both the discrimination claim and the retaliation claim were subject to the exhaustion requirement. Thus, the rule of Rivera-Díaz is that when the protected conduct in an ADA retaliation claim is the exercise or vindication of a right granted by Title I, which pertains to disability discrimination by employers, the Title V retaliation claim is subject to the same exhaustion requirement as a Title I discrimination claim. That is, such a retaliation claim must be adjudicated through the EEOC before it may be brought in court. See, e.g., Kelly v. N. Shore-Long Island Jewish Health Sys., 166 F. Supp. 3d 274, 288 (E.D.N.Y. 2016); Knaub v. Tulli, 788 F. Supp. 2d 349, 359 (M.D. Pa. 2011).

But when a plaintiff claims to have been retaliated against for exercising or vindicating a right granted by Title II (disability discrimination in the provision of services by a public entity) or Title III (disability discrimination in the provision of public accommodations and services operated by private entities), which do not concern disability discrimination by employers, courts have not required exhaustion through the EEOC. See Cable v. Dep't of Devt'l Servs., 973 F.Supp. 937, 940 (C.D. Cal. 1997) ("Plaintiff's Title V claims rely on acts and practices Plaintiff alleges were unlawful under Title II of the ADA. Thus, Plaintiff was not required to exhaust administrative remedies before filing this action.") rev'd on other grounds, 54 F. App'x 263 (9th Cir. 2002); McInerney v. Rensselaer Poly. Inst., 505 F.3d 135, 139 (2d Cir. 2007) ("[W]e hold that there is no administrative-exhaustion requirement for ADA Title III claims or Title V claims predicated on asserting one's rights under Title III).

With the foregoing principles in mind, the court begins with the retaliation claim plaintiff asserts in Count VIII, and then turns to the retaliation claim he asserts in Count IV.

A. Count VIII

In Count VIII, plaintiff asserts that he was subjected to two different sets of adverse actions by the Trustees and DHMC because he engaged in the protected conduct of suing them in a previous case in this court, 12-cv-40-LM. See FAC ¶¶ 131, 140. In 12-cv-40-LM, Dr. Isaacs asserted an ADA discrimination claim against the Trustees, DHMC, and Mary Hitchcock Memorial Hospital, and his claim was strictly limited to discrimination in employment, under Title I.⁴ Thus, before he can bring theretaliation claim he asserts in Count VIII in this court, he must exhaust his administrative remedies. See Rivera-Díaz, 748 F.3d at 389. He has not alleged that he has done so. Accordingly, the Trustees are entitled to dismissal of Count VIII.⁵ Moreover, while DHMC has not moved to dismiss Count VIII, the foregoing analysis applies with equal force to plaintiff's retaliation claim against DHMC. Thus, as to DHMC, Count VIII is dismissed sua sponte. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 23 (1st Cir. 2014) (explaining that sua sponte dismissal is appropriate "where 'it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile'") (quoting Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002)).

Plaintiff attempts to avoid the reach of Rivera-Díaz by arguing that Count VIII should not be dismissed because he pled Title III retaliation against an educational institution, whichdoes not require administrative exhaustion. Plaintiff is mistaken. First of all, as the court has explained, there is no such thing as Title III exhaustion. But, more importantly, Count VIII asserts a claim that the Trustees retaliated against plaintiff for suing them in 12-cv-40-LM, and the complaint in 12-cv-40-LM asserts a claim against the Trustees and DHMC, under Title I, for disability discrimination in employment. Nowhere in the complaint in 12-cv-40-LM did plaintiff assert a Title III claim against any defendant. Because plaintiff is not now claiming, in Count VIII, that the Trustees or DHMC retaliated against him for asserting any right granted by Title III, the rule stated in McInerney, 505 F.3d at 139, does not excuse him from the exhaustion requirement.

Both the Trustees and DHMC are entitled to dismissal of the ADA retaliation claims that plaintiff asserts against them in Count VIII due to plaintiff's failure to exhaust the administrative remedies available to him. Moreover, those claims are, with one exception, dismissed with prejudice. The acts of retaliation alleged in Count VIII include: (1) "poison[ing] the well with the Board and needlessly push[ing] for a censure," FAC ¶ 133; and (2) rejecting applications for admission to the DHMC residency program that he filed in 2013, 2014, 2015, and 2016, see FAC ¶ 141. With the possible exception of the most recent rejection of a residencyapplication, none of the acts of purported retaliation that plaintiff alleges in support of Count VIII took place recently enough for plaintiff to file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); N.H. Rev. Stat. Ann. ("RSA") 354-A:21, III; Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)). The precise timing of plaintiff's most recent residency application is not entirely clear. In paragraph 141 of his FAC, plaintiff alleges that he "applied for federal residency at DHMC in 2013, 2014, 2015, and 2016," and in paragraph 145, he alleges that "Dartmouth actively rejected [his] applications on multiple occasions between 2013 and 2017." Thus, depending upon the date of plaintiff's most recent rejection, there remains a possibility that a retaliation claim based upon the most recent rejection could still be administratively exhausted. Accordingly, Count VIII is dismissed with prejudice, except that plaintiff may, if possible, assert a properly exhausted ADA retaliation claim based upon the rejection of his 2016 application to DHMC for a residency.

B. Count IV

In Count IV, plaintiff claims that he was subjected to three different adverse actions by the Board because, among other things, he asked the Board for a reasonable accommodation that would have allowed him to participate in his disciplinaryhearing. Asking for a reasonable accommodation from a public entity is conduct directed to vindicating a right granted by Title II of the ADA. Thus, ...