Spann v. Word of Faith Christian Center Church

• Citation: 589 F.Supp.2d 759
• Decision Date: 20 November 2008
• Docket Number: Civil Action No. 3:07CV207TSL-JCS.
• Parties: Arshad SPANN, by and through his Natural Mother and Next Friend, Persephiney HOPKINS, and Persephiney Hopkins, Individually, Plaintiffs v. WORD OF FAITH CHRISTIAN CENTER CHURCH, Jane Does A-G, John Does A-G, and Corporations A-G, Defendants.
• Court: United States District Courts. 5th Circuit. Southern District of Mississippi

589 F.Supp.2d 759

Arshad SPANN, by and through his Natural Mother and Next Friend, Persephiney HOPKINS, and Persephiney Hopkins, Individually, Plaintiffs v. WORD OF FAITH CHRISTIAN CENTER CHURCH, Jane Does A-G, John Does A-G, and Corporations A-G, Defendants.

Civil Action No. 3:07CV207TSL-JCS.

United States District Court, S.D. Mississippi, Jackson Division.

November 20, 2008.

COPYRIGHT MATERIAL OMITTED

James H. Thigpen, Thigpen and Clark, Jackson, MS, for Plaintiffs.

James S. McCoy, William M. Dalehite, Jr., Steen, Dalehite & Pace, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendant Word of Faith Christian Center Church for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Persephiney Hopkins, individually and as mother and next friend of Arshad Spann, has responded to the motion and has filed a cross-motion for partial summary judgment. The motions have been fully briefed by the parties, and the court, for the reasons that follow, concludes that defendant's motion should be granted in part and denied in part, and that plaintiff's motion should be denied.

From the time he was fifteen months old until age four, plaintiff Arshad Spann, the minor son of plaintiff Persephiney Hopkins, was enrolled in the daycare/preschool at Word of Faith Christian Center Church.¹ When he was three years old, Arshad was diagnosed as developmentally delayed, and shortly before he turned four, Arshad was diagnosed as autistic. At some point following his diagnosis with autism, defendant informed Hopkins that the school and its teachers were not qualified, trained or equipped to educate Arshad and that he therefore would not be allowed to re-enroll Arshad for the following school year. Plaintiff Hopkins soon withdrew Arshad from the Word of Faith preschool, and after a short placement during the summer 2006 at another private school, Ms. Hopkins enrolled Arshad in the preschool program at Clinton Park Elementary School, a public elementary school serving the Clinton Public School District.

In April 2007, Ms. Hopkins, individually and on behalf of Arshad, brought this action against defendant Word of Faith Christian Center Church, asserting claims under federal and state law, based on allegations that defendant's preschool under 29 U.S.C.A. § 794, intentionally discriminated against Arshad because of his disability, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794; that defendant failed to provide, or to ensure Arshad was provided, appropriate special education services, in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; that defendant breached its contract with her by failing to uphold its assurances and promises that the school and its instructors were equipped, trained and qualified to educate Arshad with his disability; and that by all these actions, defendant has intentionally and/or negligently inflicted emotional distress upon plaintiff.

Defendant moved first for summary judgment on all of plaintiffs' claims, following which plaintiff filed her own motion for partial summary judgment on their claim based on the Rehabilitation Act and their claim for breach of contract. The court considers the motion as to plaintiff's claims seriatim.

Americans With Disabilities Act (ADA)

Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the ... accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a).² Places of public accommodation under the ADA are "defined in terms of 12 extensive categories," PGA Tour, Inc. v. Martin, 532 U.S. 661, 676, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001), and includes places of education, see 42 U.S.C. § 12181(7)(J). However, 42 U.S.C. § 12187 states:

The provisions of the subchapter [III] shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C.2000-a(e)) [42 U.S.C.A. § 2000a et seq.] or to religious organizations or entities controlled by religious organizations, including places of worship.

Defendant has moved for summary judgment on the ground that it is exempt from coverage under Title III of the ADA as a religious private school that is controlled by a religious organization, Word of Faith Christian Center Church.

Plaintiff seeks to avoid summary judgment on this claim, arguing that because defendant failed to plead the exemption as an affirmative defense, it has waived the defense. See Fed. R. Civ. Proc. 8(c) ("In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense...."). Defendant responds that it was not required to affirmatively plead that it is a religious institution "because religious institution status is not a defense, but a statutorily granted exemption." Contrary to defendant's position, the courts have consistently held that statutory exemptions, particularly from remedial statutes, must be pled as affirmative defenses. See Oden v. Oktibbeha County, Miss., 246 F.3d 458, 467 (5th Cir.2001) (holding that defendants waived defense of "personal staff" exception to Title VII by failing to plead same); Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1279-1280 (10th Cir.1998)(holding that "[a] claim of exemption is an affirmative defense, which must be specifically pleaded."); Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1013 (11th Cir.1982) (recognizing that cases "have generally treated statutory exceptions from remedial statutes as affirmative defenses"); Schwind v. EW & Assoc., Inc., 357 F.Supp.2d 691, 697 (S.D.N.Y. 2005) (defense of exemption under a remedial statute must be specifically pled or will be waived); see also Vore v. Colonial Manor Nursing Center, No. 3-03-CV-1660-BD(P), 2004 WL 2348229, at 3 (N.D.Tex. Oct. 19, 2004) (recognizing that "[c]onsistent with the remedial purposes of the ADA, a charge of employment discrimination must be construed with the `utmost liberality'").

Defendant did not plead the religious organization exemption as an affirmative defense to plaintiff's ADA claim. However, a defendant's "failure to plead an affirmative defense will not always result in waiver, particularly where the responding party has an opportunity to respond to the affirmative defense and no prejudice results." Passa v. City of Columbus, No. 2:03-CV-81, 2007 WL 3125130, 5 (S.D.Ohio Oct. 24, 2007). In this vein, the Fifth Circuit has stated,

While it is true that failure to abide by Rule 8(c) leads to waiver, there is some play in the joints. A defendant must "plead an affirmative defense with enough specificity or factual particularity to give the plaintiff `fair notice' of the defense that is being advanced." The concern is that "[a] defendant should not be permitted to `lie behind a log' and ambush a plaintiff with an unexpected defense." "Where the [affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal." "More specifically, a defendant does not waive an affirmative defense if it is raised at a `pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.'"

Rogers v. McDorman, 521 F.3d 381, 385-386 (5th Cir.2008) (internal citations omitted). In the case at bar, while plaintiff points out that defendant first specifically raised this defense in its motion for summary judgment, plaintiff does not claim, nor could he reasonably claim to be surprised that defendant would claim that it is exempt as a private entity that is controlled by a religious organization. The defense cannot have been unexpected, particularly given that plaintiff brought this action against the Word of Faith Christian Center Church.

Plaintiff asks that should the court conclude that defendant has not waived the exemption defense, the court should allow additional time for discovery related to the question whether defendant in fact qualifies for the exemption, pointing out that the question whether a school qualifies for the religious exemption is a "mixed question of law and fact." See Doe v. Abington Friends School, 480 F.3d 252 (3d Cir.2007). However, plaintiff has suggested nothing that discovery could possibly reveal which might undermine defendant's claim that the exemption applies. Plaintiff herself has sued the Word of Faith Christian Center Church, which she alleges operates the subject daycare/preschool. See Woods v. Wills, 400 F.Supp.2d 1145, 1161-1162 (E.D.Mo.2005) (holding that "if a church itself operates a day care center, a nursing home, a private school, or a diocesan school system, the operations of the center, home, school, or schools would not be subject to the requirements of the ADA or this part").³ Accordingly, plaintiff's ADA claim will be dismissed.

The Rehabilitation Act

Plaintiff has sued defendant under Section 504 of the Rehabilitation Act based on defendant's refusal to re-enroll Arshad for the succeeding school year once it learned that Arshad had been diagnosed with autism. She contends the refusal to accommodate Arshad's autism constituted discrimination in violation of the Rehabilitation Act.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), states:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

"Program or activity" is defined to include the operations of a private organization "which is...