Keith-Foust v. N.C. Cent. Univ.
| Decision Date | 11 August 2016 |
| Docket Number | 1:15CV470 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | ANITA KEITH-FOUST, Plaintiff, v. NORTH CAROLINA CENTRAL UNIVERSITY; UNIVERSITY OF NORTH CAROLINA; DONALD W. CORBETT; KESHA T. LEE; DR. DEBRA SAUNDERS-WHITE; DARRYL K. LESTER; DR. DONNA C. KORNEGAY; STEPHANIE B. WILLIAMS; and PHYLISS CRAIG-TAYLOR, in their individual and official capacities, Defendants. |
This matter is before the Court on the Motion to Dismiss Amended Complaint ("Motion") [Doc. #28] by Defendants North Carolina Central University ("NCCU"), University of North Carolina ("UNC"), Donald Corbett, Kesha T. Lee, Dr. Debra Saunders-White, Darryl K. Lester, Dr. Donna C. Kornegay, Stephanie B. Williams, and Phyllis Craig-Taylor (collectively referred to as "Defendants"). In her Amended Complaint, Plaintiff Anita Keith-Foust, a former student at NCCU, alleges the following claims: violation of Title II of the Americans with Disabilities Act ("ADA") against "Defendants"1 (Count 1); violation of Section 504 of theRehabilitation Act against "Defendants"2 (Count 2); retaliation in violation of the ADA against NCCU, UNC, Corbett, Saunders-White, Williams, Craig-Taylor, and Lester (Count 3); retaliation in violation of the Rehabilitation Act purportedly against the same defendants as in Count 3 (Count 4); tortious interference with contract against Corbett (Count 5); fraud against NCCU, Corbett, Lee, Kornegay, and Saunders-White (Count 6); negligence against Lee, Kornegay, Lester, Craig-Taylor, and Williams (Count 7); negligent misrepresentation against Lee and Kornegay (Count 8); and unfair and deceptive trade practices against Corbett (Count 9). (Verified First Am. Compl. ("Am. Compl.") ¶¶ 136-265 [Doc. #20].)
Defendants argue that Counts 1 through 4 alleging violations of the ADA and Rehabilitation Act are barred by the statute of limitations and otherwise fail to state a claim; those same counts against individual defendants in their individual and official capacities should be dismissed because the statutes do not allow claims against individuals; Counts 5 through 9 against NCCU, UNC, and individual defendants in their official capacities should be dismissed on Eleventh Amendment and sovereign immunity grounds; Counts 5 through 8 should be dismissed for failure to state a claim and based on public official immunity; and Count 9 should be dismissed for failure to state a claim.
For the reasons to be explained, Defendants' Motion is denied in part and granted in part. Keith-Foust has sufficiently stated, at least in part, allegations that NCCU violated the ADA and Rehabilitation Act. While the alleged failures to accommodate that took place before June 11, 2013 are time-barred, those and other alleged discriminatory acts, if any, occurring on or after that date are timely. Because Defendants did not challenge the sufficiency of the allegations of the timely discriminatory conduct that took place during or as a result of PBAP, presumably because they believed all of those allegations would be deemed time-barred, the sufficiency of those allegations has not been addressed, and, as such, they stand. As it relates to Defendants' pleading challenges, though, Keith-Foust has sufficiently alleged that the delayed provision of accommodations for her MPA class supports her discrimination claims under the ADA and Rehabilitation Act. However, allegations of constructive discharge in support of such claims fail. Likewise, her allegations of Lester's delay in accommodating her do not sufficiently allege retaliation, and FERPA does not provide a private cause of action for the alleged retaliatory delay in providing her access to her education records. Furthermore, Keith-Foust's ADA and Rehabilitation Act claims against the individual defendants in their official and individual capacities are dismissed. Unlike the ADA and Rehabilitation Act claims that remain in part, the tort and unfair and deceptive trade practice claims are dismissed in their entirety.
For purposes of this Motion, the well-pled facts are taken as true. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Keith-Foust has a commendable academic history at NCCU. She has obtained two undergraduate degrees - in 1979 with a major in Business Administration and in 2013 with double majors in Psychology and Political Science- from the school. (Am. Compl. ¶¶ 15, 17.) She attended NCCU on a merit scholarship, was a member of several honor societies, participated in a number of professional organizations, and helped organize after-school, athletic, and sustainability programs. (Id. ¶¶ 18-20.) Keith-Foust is also visually impaired. (Id. ¶ 21.) In her twenties, she was diagnosed with glaucoma, and in March 2012, she was diagnosed as legally blind. (Id. ¶¶ 21, 23.)
In the spring of 2013, she applied for admission to NCCU's School of Law. (Id. ¶ 24.) In spite of her accomplishments and grade point average of 3.70, NCCU did not offer Keith-Foust unconditional admission into the School of Law even though it offered unconditional admission to non-disabled students with comparable credentials. (Id. ¶ 27, 28, 29.) Instead, NCCU admitted her into its Performance-Based Admission Program ("PBAP") for the summer of 2013, specifically June 3 through June 14. (Id. ¶ 28.) PBAP is offered to a select number of applicants who do not qualify for unconditional admission, but whose records show promise of success in law school. (Id. ¶ 30.) It is a two-week program during which students attend class and then are evaluated for admissionto the School of Law based on their academic performance and professionalism during the program. (Id. ¶ 31.)
Since 2008, Keith-Foust required reasonable accommodations during her enrollment at NCCU and had met with NCCU's Office of Disability Services prior to the start of each semester to request and develop an accommodations plan. (Id. ¶¶ 22, 35.) Therefore, before the start of the PBAP, on May 24, 2013, she met with NCCU's Office of Disability Services and Defendant Dr. Donna Kornegay, the Director of Wellness at the School of Law and liaison to Student Disability Services, to request and develop an accommodation plan. (Id. ¶¶ 8, 34.) Keith-Foust requested the following accommodations for PBAP: special seating in the front of the classroom, access to a table for her equipment, recorded lectures (for which she would provide the device), use of her personal laptop/equipment, absences for medical appointments (documentation required), electronic copies of handouts/class materials (via e-mail) sent before class, an oral description of videos shown in class as needed, a personal assistant in class to provide reader services, extended time on exams/tests (double time), separate setting for all exams/tests, use of a laptop to access assistive technology on tests, and extended time on assignments as needed (two additional days). (Id. ¶ 36.a.-l.) NCCU did not object to any of the accommodations and orally agreed that Keith-Foust was entitled to these accommodations during PBAP. (Id. ¶¶ 37, 38.) Ultimately, NCCU determined that these accommodations were reasonable to afford Keith-Foust equal access during PBAP and included the accommodations in anAccommodations Plan. .) Defendant Kesha Lee, Director of Student Disability Services, and Kornegay told Keith-Foust that the Accommodations Plan was the official plan that would be used during her enrollment in PBAP and that she would be provided all of the accommodations under the Plan. (Am. Compl. ¶ 39.) Although not among Keith-Foust's requested accommodations (see id. ¶ 36), Lee also told her that she would be provided a CCTV; however, Lee later informed her that the CCTV would not be provided due to administrative issues, and it was not included in the Plan. (Id. ¶ 40.) Dr. Kornegay signed the Accommodations Plan on May 29, 2013, and Keith-Foust signed it May 31, 2013. (Id. ¶ 41; Accommodations Plan for PBAP.)
On May 30, 2013, Defendant Donald W. Corbett, Associate Dean for Academic Affairs at the School of Law, e-mailed Keith-Foust a memorandum, the purpose of which was to provide her with an overview of PBAP and outline how her Accommodations Plan would be implemented. (Am. Compl. ¶¶ 4, 71, 72.) Although Corbett specifically mentioned the Accommodations Plan and never purported to alter or supersede it, he explained how some, but not all, of Keith-Foust's accommodations would be implemented. (Id. ¶¶ 73, 74.) He did not mention the accommodations of providing for an oral description of videos shown in class, access to a table for equipment, or providing for extended time on assignments. (Id. ¶ 75.)
Unbeknownst to Keith-Foust at the time, Corbett responded to an e-mail from one of Keith-Foust's writing instructors and stated that he "purposely omitted" from his memorandum the accommodation of extended time on assignments because he considered it to be an "impractical request." (Id. ¶¶ 76, 77.) He stated that it would be "better to discourage" her from the idea of receiving extended time on assignments so that it would be not "be an expectation later." (Id. ¶ 78.) He went on to say that if Keith-Foust insisted on being provided extended time on assignments, he would be "forced to tell DK" that he did not believe Keith-Foust was being realistic about what would be expected of her and that law school was not the route for her. (Id. ¶ 79.) It was not until one year later that Keith-Foust first learned of Corbett's e-mail.3 (Id. ¶ 86.)
Keith-Foust enrolled in PBAP; however, "[t]hroughout the duration of PBAP up until the last day of the program," NCCU failed to accommodate her as it had agreed. (E.g., id. ¶ 43.) NCCU did not provide her with special seating in the front of the class, which required her to arrive much earlier than other...
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