United States District Court, S.D. Ohio, Western Division
L. Litkovitz United States Magistrate Judge.
Junhe Qiu, a former student who was academically dismissed
from the University of Cincinnati ("UC"), brings
this action against defendants UC, Dr. Neville Pinto, and Dr.
Catherine Losada, alleging that defendants violated Title II
of the Americans with Disabilities Act, 42 U.S.C. §
12132, Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794(a), and the Fourteenth Amendment to the United
States Constitution, and discriminated against him on the
basis of race, national origin, and color in violation of
both federal and state law. (Doc. 1). He also brings claims
of hostile environment, retaliation, and intentional
infliction of emotional distress. (Id.). The Court
previously issued an order denying plaintiffs motion for a
temporary restraining order ("TRO") after a hearing
on September 18, 2018. (Doc. 10). This matter is now before
the Court on defendants' motion to dismiss plaintiffs
complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) (Doc. 18), plaintiffs response in
opposition (Doc. 21), and defendants' reply memorandum.
Allegations in the Complaint (Doc. 1)
is an international student from China who enrolled in the
undergraduate program at UC's College-Conservatory of
Music ("CCM") in August 2016 on a music
scholarship. (Doc. 1, Complaint at ¶¶ 3, 18).
Plaintiff majored in violin performance and became a member
of the CCM Concert orchestra. (Id. at ¶¶
20-21). Plaintiff held an F-l visa issued by the United
States Department of State, which was valid only if he
remained in "duration of status" by being enrolled
in classes at CCM in compliance with his I-2O. (Id. at
suffers from a chronic heart condition. In November 2014,
plaintiff had heart surgery in China after he collapsed
during a music festival in Europe. (Id. at ¶
16). The heart condition was not successfully treated and
persisted when plaintiff came to the United States to study
at CCM. (Id.). Plaintiff began receiving treatment
at the University of Cincinnati Health Arrythmia Center in
October 2016. (Id. at ¶ 23). On November 12,
2016, while practicing in the CCM orchestra rehearsal room,
plaintiff collapsed and was transported to the emergency room
where he was diagnosed with syncope and collapse from a heart
defect. (Id.). Two days later, plaintiff underwent
surgery where an implant was placed in his chest.
spring semester of 2017, plaintiff enrolled in defendant Dr.
Catherine Losada's Music Theory 2 class. (Id. at
¶ 24). On March 10, 2017, defendant Losada accused
plaintiff of academic dishonesty by completing a homework
assignment with the unauthorized use of her instructor's
manual. (Id. at ¶ 25). Plaintiff alleges that
he never had the instructor's manual and the accusation
was false. (Id.). Nevertheless, plaintiff signed an
academic dishonesty confession form to "avoid more
trouble" from defendant Losada. (Id.).
Plaintiff alleges that defendant Losada "did not tell
[him] that he could disagree with the accusation and that he
had the right to challenge the accusation and have a hearing
on the accusation." (Id.). A few weeks later,
on March 28, 2017, defendant Losada again accused plaintiff
of academic dishonesty by alleging that his answer was too
similar to the model answer given in the teacher's
manual. (Id. at ¶ 26). Plaintiff alleges that
he did not have the instructor's manual. (Id.).
Plaintiff requested a college hearing panel, which found him
guilty of academic dishonesty. (Id.). Defendant
Losada subsequently failed plaintiff from the course.
did not attend the 2017 fall semester at CCM because he
returned to China for medical treatment due to a shoulder/arm
injury. (Id. at ¶ 27).
returned to CCM for the 2018 spring semester and reenrolled
in defendant Losada's Music Theory 2 class. (Id.
at ¶¶ 28, 30). On March 7, 2018, plaintiff passed
out during violin rehearsal and was taken to the emergency
room where he was diagnosed with syncope, collapse, and sinus
tachycardia. (Id. at ¶ 31). On March 9, 2018,
defendant Losada for a third time accused plaintiff of
academic dishonesty by completing his homework assignment
using the instructor's manual. (Id. at ¶
30). Plaintiff requested a hearing, which was scheduled for
April 20, 2018. (Id.). Plaintiff missed the hearing
on April 20, 2018 due to chest pain. (Id. at ¶
32). Plaintiff alleges that he was "forced to remain in
his bed," "most probably drifted in and out of
consciousness," and "did not have the strength to
inform the Dean or anyone else that he was very sick."
(Id.). The hearing was held in plaintiffs absence
and he was dismissed from CCM. (Id. At ¶33).
recovering from the chest pain, plaintiff found out that he
had been dismissed from CCM. (Id.). He spoke with
Dean Scott Lipscomb and requested that CCM accommodate him by
providing a new hearing due to his heart condition.
(Id.). Dean Lipscomb promised to look into his case
and review his request for accommodation by reason of his
medical disability. (Id.). Dean Lipscomb did not get
back to plaintiff and he did not receive a new hearing.
(Id.). Plaintiff then met with another CCM
administrator, Dean Stephanie Schlagel, to a request an
accommodation in the form of a new hearing. (Id.).
After the meeting, Dean Schlagel informed plaintiff that his
dismissal from CCM was final. (Id.).
months after his dismissal from UC, plaintiff filed this
lawsuit. As relief, plaintiff seeks a permanent injunction
ordering defendants to reinstate him in classes at
and monetary damages. (Doc. 1 at 18).
Rule 12(b) Standard
Fed.R.Civ.P. 12(b)(6), a party may challenge a complaint for
failure to state a claim upon which relief can be granted. In
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
"[T]he statement need only give the defendant fair
notice of what the . .. claim is and the grounds upon which
it rests." Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). In ruling on a
12(b)(6) motion, a court "may consider the Complaint and
any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to
the defendants'] motion to dismiss so long as they are
referred to in the Complaint and are central to the claims
contained therein." Bassett v. Nat 7
Collegiate Athletic Ass % 528 F.3d 426, 430 (6th
Cir. 2008). See also Bd. of Trustees Sabis Int'l Sch.
v. Montgomery, 205 F.Supp.2d 835, 843 (S.D. Ohio 2002)
("[A] court may rely on documents outside the pleadings,
if those documents 'simply [fill] in the contours and
details of the plaintiffs complaint, and [add] nothing
new/without converting the motion to dismiss into a motion
for summary judgment.") (quoting Yeary v. Goodwill
Indus.-Knoxvilie, Inc., 107 F.3d 443, 445 (6th Cir.
Motion to Dismiss (Doc. 18)
move to dismiss all claims against defendants UC, Dr. Neville
Pinto, and Dr. Catherine Losada. (Doc. 18).
Plaintiffs Title II ADA Claims and Rehabilitation Act
argue that plaintiffs ADA claims against defendants Pinto and
Losada in their official capacities fail as a matter of law.
(Doc. 18 at 18). Defendants also argue that the ADA claims
against defendant Losada in her individual capacity must be
dismissed because the ADA does not permit public employees to
be sued in their individual capacities. (Id.)
(citing Williams v. McLemore, 247 Fed.Appx. 1, 8
(6th Cir. 2007)). Defendants argue that plaintiffs ADA claims
against UC are barred by the Eleventh Amendment and fail to
state a plausible claim for relief under the ADA.
(Id. at 18-22). Defendants argue that plaintiffs
Rehabilitation Act claims, which are reviewed under the same
standards governing the ADA, should be similarly dismissed.
(Id. at 22-23).
response, plaintiff cites to the Sixth Circuit's decision
in Hostettler v. College of Wooster, 895 F.3d 844
(6th Cir. 2018), as requiring a "heightened level of
accommodation for the plaintiff with a medical
disability" and mandating that plaintiff receive a new
hearing as an accommodation under the ADA. (Doc. 21 at 3).
Plaintiff states that he timely requested a new hearing after
he missed the April 20, 2018 academic misconduct hearing and
notified defendants that he was absent from the hearing as a
result of a medical condition involving his heart.
II of the Americans with Disabilities Act provides that
"no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. §
12132. To state a claim that he was dismissed from UC in
violation of the ADA, plaintiff must allege that: (1) he has
a disability; (2) he is otherwise qualified; and (3) he was
excluded from participation in, denied the benefits of, or
subjected to discrimination under the program because of his
disability. Anderson v. City of Blue Ash, 798 F.3d
338, 357 (6th Cir. 2015). See also S.S. v. E. Ky.
Univ., 532 F.3d 445, 453 (6th Cir. 2008). "A
handicapped or disabled person is 'otherwise
qualified' to participate in a program if [he] can meet
its necessary requirements with reasonable
accommodation." Kaltenberger v. Ohio Coll. of
Podiatric Medicine, 162 F.3d 432, 435-36 (6th Cir. 1998)
(internal citations omitted). See also Gati v. W. Ky.
Univ., __F. App'x__, No. 18-5732, 2019 WL 364449, at
*2 (6th Cir. Jan. 29, 2019).
to the ADA, Section 504 of the Rehabilitation Act provides
that "[n]o otherwise qualified individual with a
disability .. . 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." 29 U.S.C. § 794(a).
"Apart from [§ 504's] limitation to denials of
benefits 'solely' by reason of disability and its
reach of only federally funded-as opposed to
'public'-entities, the reach and requirements of both
statutes are precisely the same." E. Ky. Univ.,
532 F.3d at 452-53 (quoting Weixel v. Bd. of Educ. of
N.Y.,287 F.3d 138, 146 n.6 (2d Cir. 2002)). Thus,
claims brought under the Rehabilitation Act and ADA are
generally reviewed under the same standards. Shaikh,
608 Fed.Appx. at 353 (citing Jakubowski v. Christ Hosp.,
Inc.,627 F.3d 195, 201 (6th Cir. 2010)). Courts may
analyze claims under the ADA and § 504 of the
Rehabilitation Act together because both statutes set forth
"the same remedies, ...