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Entine v. Lissner

United States District Court, S.D. Ohio, Eastern Division

November 17, 2017

MADELEINE ENTINE, Plaintiff,
v.
SCOTT LISSNER, Defendant.

          Jolson, Magistrate Judge.

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.

         Plaintiff Madeleine Entine is a second-year undergraduate student at the Ohio State University (“Ohio State, ” or the “University”). Entine has been diagnosed with depression, anxiety, obsessive-compulsive disorder, and post-traumatic stress disorder. She suffers from debilitating panic attacks. And she has trained her beloved eight-year-old Cavalier King Charles Spaniel, Cory, to disrupt her panic attacks by jumping on her chest and licking her face. Those tactile sensations restore Entine's ability to breathe and move during times of medical crisis.

         Entine and Cory live in the Chi Omega sorority house on Ohio State's campus. But the sororal bonds at Chi Omega have weakened in recent months-Entine's Chi Omega sister, Carly Goldman, claims to be severely allergic to Cory. Those allergies, Goldman claims, exacerbate her Crohn's disease, causing her significant pain and distress.

         For Entine, this case is about whether, under the Americans with Disabilities Act (“ADA”), she can continue to live in the Chi Omega house with Cory. For the Defendant, Scott Lissner, Ohio State's ADA Coordinator, this case is about a thorny and largely unmapped legal issue: how the University should reconcile the needs of two disabled students whose reasonable accommodations are (allegedly) fundamentally at odds. But for the Court, this case merely entails a straightforward application of ADA regulations.

         Under clearly established law, Entine and Cory prevail. Based on the evidence of record, it is unclear whether Goldman ever requested an accommodation under the ADA for her allergy to a service animal. It is certain, however, that Lissner did not perform the inquiry required under the ADA before disallowing the use of a service animal. In fact, Lissner did not even establish that it was Cory who aggravated the symptoms of Goldman's disability.

         For all of these reasons, detailed further below, Entine's Motion for a Preliminary Injunction (ECF No. 10) is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Entine is a second-year undergraduate student at Ohio State and the slated[1] Vice President of the Zeta Alpha chapter of the Chi Omega sorority. (Verified Compl., ECF No. 1, ¶ 2; Nov. 8, 2017 Prelim. Inj. Hr'g Tr. (“Hr'g Tr. Vol. I”).) Lissner is the University's ADA Coordinator. (ECF No. 1 ¶ 3.) Ohio State is a department, agency, or other instrumentality of the state of Ohio and therefore is a public entity under Title II of the ADA. (Id. ¶ 37.) Ohio State receives federal financial assistance for purposes of Section 504 of the Rehabilitation Act. (See Id. ¶¶ 48- 49.)

         Generally, first- and second-year undergraduate students are required by University policy to live in campus housing, but the University makes an exception for second-year students “to live in a social fraternity or sorority house maintained exclusively for its members if the house meets the University's Greek Housing Standard and Greek Housing Implementation Report and if the University approves the house to host second-year students.” (Pl.'s Mot. for TRO, ECF No. 2, at 3.) Entine applied for and was approved to live in the Chi Omega house. (ECF No. 1 ¶ 9.) Not only is living in the sorority house important to Entine socially-as it “facilitates close social relationships between sorority sisters and provides additional and different living spaces and dining experiences not available in campus housing” (ECF No. 2 at 3)-but also, as the incoming Vice President of Chi Omega, she is required by the sorority's bylaws to live in the sorority house. (Id.; see also Prelim. Inj. Hr'g, Pl.'s Ex. 2.)

         Entine has a disability under the ADA. (ECF No. 1 ¶ 11.) She suffers from severe panic attacks that render her immobile, restrict her breathing, and cause her to hyperventilate. (Id. ¶ 13.) She has been hospitalized for these panic attacks and has received medical and psychiatric treatment for them. (Id. ¶ 11.) In fact, before starting school for the semester in August 2017, Entine was suicidal, and committed herself to Harding Hospital at the Ohio State University Wexner Medical Center. (Hr'g Tr. Vol. I.) After this visit, medical staff at Harding confirmed that Entine meets the diagnostic criteria for generalized anxiety disorder with panic attacks, post-traumatic stress disorder, obsessive-compulsive disorder, and unspecified depressive disorder, conditions which substantially interfere with her daily life. (ECF No. 2 at 4; Hr'g Tr. Vol. I.)

         To assist in coping with her disability, Entine has a service dog-an eight-year-old Cavalier King Charles Spaniel named Cory. (ECF No. 1 ¶ 14; see also Hr'g Tr. Vol. I.) Entine has trained Cory to perform the specific task of climbing on her torso when she has a panic attack. (ECF No. 1 ¶ 14.) When Entine feels Cory's weight on her torso, that tactile sensation restores her ability to breathe and move. (Id.; see also Hr'g Tr. Vol. I.) Cory's smell lowers Entine's heart rate during her panic attacks, and he licks the tears from her face when she is unable to reach for tissues. (Hr'g Tr. Vol. I.) During a panic attack, Cory makes Entine feel less alone. (Id.) Cory also provides “general passive support” to Entine, and his presence has resulted in Entine suffering panic attacks that are less frequent and shorter in duration. (Hr'g Tr. Vol. I; ECF No. 1 ¶ 15.) At the Preliminary Injunction hearing, Entine testified that, during times when she is particularly depressed, knowing that she has Cory-a living creature that depends on her to feed him and take him outside-is the only thing that has enabled her to get out of bed. (Hr'g Tr. Vol. I.)

         After receiving her diagnosis, Entine notified the University of her disability. (ECF No. 1 ¶ 16.) The University accommodated Entine's disability by permitting Cory to accompany Entine to “areas and buildings on campus where University policies would normally prohibit animals.” (ECF No. 2 at 4.) Additionally, Entine notified the private landlord that owns the Chi Omega sorority house about Cory. While the sorority house is privately owned, the University requires it “to follow its policies and decisions relating to disability discrimination and compliance.” (Id.) Accordingly, the landlord modified the Chi Omega house's no-animal policy. (Id.) This modification allowed Entine to live in the house with Cory, and both have resided there since August 28, 2017. (ECF No. 1 ¶ 18.)

         Chi Omega also informed Lissner about Cory's presence in the sorority house. (See Hr'g Tr. Vol. I.) According to Lissner, he agreed with the decision to allow Cory to live in the Chi Omega house with Entine at the time, but also suggested to Chi Omega that they should consider setting boundaries and determining which spaces Cory was permitted to enter. (See id.) Chi Omega therefore provided Entine with a written plan for accommodating Cory. (See Prelim. Inj. Hr'g, Pl.'s Ex. 9.) Under this plan, Cory was permitted only in Entine's bedroom and in the formal living room; he was not allowed on the living room furniture. (See id.)

         Around September 10, 2017, another Chi Omega member and resident of the sorority house, Carly Goldman, objected to Cory's presence due to her allergies. (ECF No. 1 ¶ 19.) At the Preliminary Injunction hearing, Goldman testified that she was not simply allergic to Cory, but that his presence in the Chi Omega sorority house was exacerbating the symptoms of her Crohn's disease. (See generally Hr'g Tr. Vol. I.) When suffering from a “flare” in her Crohn's symptoms, Goldman experiences painful bloating, and her bowel movements typically occur either nonstop, or once every three to four weeks. (See id.) These symptoms impact Goldman's ability to attend class and socialize with her friends, causing her to feel isolated. (Id.) The inability to predict when her Crohn's symptoms will “flare” also causes Goldman anxiety, for which she sees a therapist. (See id.)

         During her lengthy testimony about living with Crohn's disease, Goldman stated that she has had stomach issues since birth, but was officially diagnosed with Crohn's in April 2015. (Id.) Goldman repeatedly testified that it is “uncertain” when her Crohn's symptoms will “flare, ” and that she has no knowledge of what causes these “flares.” (See id.) Indeed, Goldman recalled that she had a “flare” in her Crohn's symptoms approximately every two weeks during the first four months of her freshman year, which she speculated may have been attributable to the anxiety she was feeling about beginning college. (Id.) Goldman also had a significant “flare” in her Crohn's symptoms when she traveled to London for an eight-week-long summer internship program. (Id.) Goldman returned home halfway through the program, because she had not had a bowel movement in four weeks, which impacted her ability to perform at her internship. (See id.)

         When Goldman began college at Ohio State, she met with the Office of Student Life - Disability Services (“Disability Services”) to inform them about her Crohn's disease and request accommodations. (Id.) The University provided Goldman with a parking pass that allows her to park close to her classrooms in case she needs to use the restroom quickly or leave class to return home. (Id.) Additionally, if Goldman has to leave during an exam to go to the restroom, she gets that time back at the end of the exam, and she can leave a recording device in her classrooms if she has to excuse herself so that she does not miss any portion of a lecture. (Id.) Finally, during her freshman year, Goldman lived in a dorm with a more private restroom than the communal restrooms in most first-year housing. (See id.)

         In addition to Crohn's disease, Goldman suffers from allergies and asthma. (Id.) Goldman testified she is allergic to certain types of trees, pollen, mold, dust mites, cockroaches, cats, and dogs. (Id.) Depending on the severity of the allergy, Goldman experiences symptoms ranging from “itchy eyes, ” a “stuffy nose, ” and rashes on her body to anaphylactic shock that needs to be treated with an EpiPen. (Id.) Goldman testified that she has not experienced anaphylactic shock as a result of her dog allergy, but suffers from swollen eyes, throat closure, a clogged nasal passageway, and rashes when she is exposed to dogs. (See id.) Interestingly, however, Goldman herself owns a dog. (Id.) For eleven years, Goldman's family has owned a Shih Tzu named Rocky. (Id.) Goldman testified that Rocky does not exacerbate her allergies because he is “hypoallergenic.” (Id.) But she also advanced a seemingly conflicting proposition that to keep her allergies at bay, her family keeps Rocky confined to the first floor of their home, and to rooms without carpet. (Id.)

         In mid-August 2017, when Goldman moved into the Chi Omega sorority house, she noticed that her eyes were red and itchy, and that she was congested. (Id.) Goldman also testified that she felt her throat and nasal passages constricting when she was trying to sleep at night, and developed a rash on her hands and chest. (Id.) Goldman alleged that she developed these symptoms from Cory's mere presence in the Chi Omega house, despite the fact that she attempted to avoid him “at all costs.” (See id.) For example, Goldman claimed that she once saw Cory sitting in the hall outside the sorority house's mail room, and was resultantly unable to go into the room to retrieve her mail. (Id.) On another occasion, her roommate slept in another sorority sister's bedroom. (Id.) Unbeknownst to Goldman, Cory had been in the woman's bedroom earlier, and when Goldman's roommate returned the next morning, Goldman had an allergic reaction-likely, she speculated, due to the presence of Cory's dander on her roommate's blanket. (See id.)

         But it is not lost on the Court that Entine was on the witness stand for the better part of a day during the Preliminary Injunction hearing, with Cory on her lap the entire time. Surely, if Goldman's allergies are triggered by Cory's presence in the three-floor Chi Omega sorority house, one could assume that Goldman, who took the stand shortly after Entine, would have had an adverse reaction to sitting in the same chair occupied by Cory merely an hour earlier. Not so. Goldman appeared symptom-free during her time on the witness stand and testified without any visible duress for well over an hour.

         According to Goldman, the anxiety caused by her allergic reaction to Cory aggravated her Crohn's symptoms. (Id.) Goldman therefore informed the sorority's “house mom, ” members of the sorority's executive board, and the Chi Omega house's landlord, about her allergy to dogs. (See id.) The landlord referred Goldman's complaint to Lissner, the University's ADA Coordinator. (ECF No. 1, ¶ 20.)

         As the University employee with the authority to address Goldman's complaint, Lissner began his investigation. First, he asked Entine and Goldman to submit information about their respective medical conditions to his office, which both did. (See Id. ¶ 21.) Lissner also met with both Entine and Goldman in person to discuss the situation. (Hr'g Tr. Vol. I.) In his meeting with Entine, Lissner discussed abiding by the boundaries for Cory set forth by Chi Omega. (Nov. 9, 2017 Prelim. Inj. Hr'g Tr. (“Hr'g Tr. Vol. II”).) Entine conveyed that her fellow Chi Omega sisters told her that Goldman had questioned the validity of Entine's medical conditions and disputed the necessity of having Cory. (Hr'g Tr. Vol. I.) Even so, Entine told Lissner that she was willing to compromise-including limiting Cory to certain areas of the ...


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