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Frogge v. Fox

United States District Court, N.D. West Virginia

June 10, 2019

VANESSA FROGGE, Plaintiff,
v.
CRAIG FOX, d/b/a Mountain Line Transit Authority, Defendant.

          MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 60], OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NO. 61, 57], GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 45], AND DISMISSING PLAINTIFF'S AMENDED COMPLAINT [DKT. NO. 3-5] WITH PREJUDICE

          THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE

         Pending before the Court is a Report and Recommendation (“R&R”) by United States Magistrate Judge Michael J. Aloi (“Judge Aloi”) [Dkt. No. 60]. For the reasons stated below, the Court hereby ADOPTS the R&R in its entirety.

         I. Factual and Procedural Background

         Plaintiff, Vanessa Frogge (“Plaintiff” or “Frogge”), initiated this case by filing a pro se complaint in the Magistrate Court of Monongalia County in Morgantown, West Virginia, on April 20, 2017 [Dkt. No. 3-1 at 1]. On June 2, 2017, Defendant Craig Fox, d.b.a. the Mountain Line Transit Authority (“MLTA”) timely filed a notice of removal of Plaintiff's suit to the Circuit Court of Monongalia County under W.Va. Code § 50-4-8, at which time the Circuit Court assumed control of the matter [Dkt. No. 3-1 at 30-34]. At the same time, Defendant filed a Motion to Dismiss Plaintiff's Complaint, arguing that the Complaint was in violation of W.Va. Code §§ 29-12A-13; 29-12A-6(d) [Dkt. No. 4-1 at 2]. The Court heard argument on Defendant's Motion to Dismiss on August 15, 2017 [Id.]. The Court ordered Frogge to file an amended complaint within twenty (20) days of the hearing [Dkt. No. 4-1 at 2]. Plaintiff filed an Amended Complaint against Defendant in the Circuit Court of Monongalia County, West Virginia, on August 29, 2017 [Dkt. No. 3-5].

         The Amended Complaint alleged a claim for discrimination against Defendant, Craig Fox, pursuant to Title II of the Americans with Disabilities Act of 1990 (“ADA”) [Dkt. No. 3-5]. Plaintiff alleges that Defendant discriminated against her as “an opinionated individual acting on his/her own behalf” when he denied her “Route Deviation Request” in December 2016, and that the conduct “was outside the scope of his employment as a government official” [Dkt. No. 3-5 at 9].

         The case was removed to the United States District Court for the Northern District of West Virginia on September 8, 2017. On September 15, 2017, Defendant filed a Motion to Dismiss [Dkt. No. 4]. A Roseboro Notice was issued to Plaintiff on October 25, 2017. On November 6, 2017, Frogge, filed a response to Defendant's motion and a Request for Pro Se Packet [Dkt. No. 12]. Defendant did not file a reply. After consideration of the parties' filings, and finding no hearing deemed necessary, the magistrate judge recommended that the Motion to Dismiss be granted [Dkt. No. 16]. Upon review of the magistrate judge's R&R of February 27, 2018 [Dkt. No. 16], and liberally construing Plaintiff's Amended Complaint, the Court found that Frogge alleged sufficient facts to survive a motion to dismiss and it rejected the R&R [Dkt. No. 20]. The matter was recommitted to Magistrate Judge Aloi to consider the record and enter rulings or recommendations as appropriate [Id.].

         In her initial Complaint, filed in the Magistrate Court of Monongalia County in Morgantown, West Virginia, Frogge asserted a claim of discrimination against Defendant Craig Fox, d.b.a. Mountain Line Transit Authority and sought $10, 000 in damages [Dkt. No. 3-1 at 1]. In the Amended Complaint, Frogge brings a claim of discrimination against Defendant, Craig Fox, pursuant to Title II of the Americans with Disabilities Act of 1990 (“ADA”) [Dkt. No. 3-5]. Plaintiff alleges that within his official capacity, Defendant Fox discriminated against her as “an opinionated individual acting on his/her own behalf” when he denied her ‘Route Deviation Request' in December 2016 and that such conduct “was outside the scope of his employment as a government official” [Dkt. No. 3-5 at 9].

         According to her Amended Complaint, Frogge suffers from a neck condition and lives in an apartment complex on Scott Avenue in Morgantown, West Virginia. She submitted a route deviation request to Mountain Line, asking for a new bus stop to be established at the top of the hill, presumably, within her apartment complex. She further alleges that “there is no sidewalk connecting [her] apartment to a hill and several flights of stairs leading to the [existing] bus stop” [Dkt. No. 3-5 at 8]. She also alleges that when Defendant conducted a site visit to consider the proposed deviation request, he failed to include consideration for her disability [Id.]. Defendant denied Plaintiff's request determining that the roads in Frogge's apartment complex were too small and did not have an acceptable place for the bus to turn around. Defendant further determined that fundamental changes would have significantly impacted other passengers on the route [Dkt. No. 3-5 at 5, 6].

         II. STANDARD OF REVIEW

         Defendant's Motion for Summary Judgment [Dkt. No. 45] is brought pursuant to Rule 56(c) of the Federal Rule of Civil Procedure. Under Rule 56(c),

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c).

         Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

         Thus, a summary judgment motion should be granted if the nonmovant fails to make a showing sufficient to establish the existence of an essential element of his claim or defense upon which he bears the burden of proof. Celotex, 477 U.S. at 323. That is, once the movant shows an absence of evidence on one such element, the nonmovant must then come forward with evidence demonstrating there is indeed a genuine issue for trial. Id. at 323-324. The existence of a mere scintilla of evidence supporting the nonmovant's position is insufficient to create a genuine issue; rather, there must be evidence on which a jury could reasonably find for the nonmovant. Anderson, 477 U.S. 252. When determining whether summary judgment is appropriate, a court must view all factual evidence and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169.

         In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter, ” Anderson, 477 U.S. at 249, nor will it make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes over a material fact exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, ” summary judgment is inappropriate. Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” then summary judgment should be granted because “a complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-323.

         III. DISCUSSION

         As stated, this matter is pending on the Report and Recommendation of Magistrate Judge Aloi, recommending that the Court grant Defendant's Motion for Summary Judgment [Dkt. No. 45]. “The Court will review de novo any portions of the magistrate judge's Report and Recommendation to which a specific objection is made . . . and the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the [parties do] not object.” Dellacirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007)(citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Moreover, the Court must liberally construe pro se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). Having conducted a de novo review of the R&R and the record, the Court concludes that Defendant's Motion for Summary Judgment [Dkt. No. 45] should be GRANTED in its entirety, that Plaintiff's Amended Complaint [Dkt. No. 3-5] be DISMISSED WITH PREJUDICE, and that this case be STRICKEN from the Court's active docket.

         A. Public Entity

         Plaintiff alleges a violation of Title II of the ADA, 42 U.S.C. § 12132, which 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 subject to discrimination by any such entity.” 42 U.S.C. § 12132. A “public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B). “[I]ndividuals sued in their individual capacity are not public entities.” Carter v. Maryland, No. JKB-12-1789, 2012 WL 6021370, at *5 (D. Md. Dec. 3, 2012). But “a suit against a state official in his or her official capacity . . . is no different from a suit against the State [or public entity] itself.” Will v. Michigan Department of State Police, 492 U.S. 58, 71 (1989).

         B. ADA Discrimination

         “In general, a plaintiff seeking recovery for violation of [the ADA] must allege that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public service, program, or activity, and (3) she was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005). “The ADA defines a disability, in part, as a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir. 2001)(internal quotation and alteration omitted)(quoting 42 U.S.C. § 12102(2)(A)). An individual “is ‘otherwise qualified' for a program if she ‘with or without reasonable modifications . . . meets the essential eligibility requirements for' participation in the program.” Zimmeck v. Marshall Univ. Bd. of Governors, 106 F.Supp.3d 776, 781 (S.D. W.Va. 2015)(quoting 42 U.S.C. 12131(2)).

         A plaintiff may satisfy the third prong by alleging “(1) intentional discrimination or disparate treatment; (2) disparate impact; [or] (3) failure to make reasonable accommodations.” Adams v. Montgomery College (Rockville), 834 F.Supp.2d 386, 393 (D. Md. 2011)(quoting A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 362 (4th Cir. 2008)). “A ‘reasonable accommodation' is one that gives the otherwise qualified plaintiff with disabilities ‘meaningful access' to the program or services sought.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003)(quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)). Nonetheless, a public entity need not make a modification that would “fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130; see also Tennessee v. Lane, 541 U.S. 509, 531-32 (2004)(explaining that Title II does not require a public entity to employ any and all means to make services accessible to persons with disabilities, and it does not require states to compromise their essential eligibility criteria for public programs).

         C. Analysis

         With its Motion for Summary Judgment [Dkt. No. 45], Defendant argues that Plaintiff's condition does not meet the ADA's definition of “disabled.” While Defendant does not dispute that Plaintiff has a neck and back condition, it argues that she has failed to demonstrate that the condition “substantially limits one or more” of her “major life activities.” Defendant asserts Frogge has no medical restrictions on her lifestyle, ambulates independently, and merely as “some difficulty” walking up hill, playing basketball, and jumping rope [Dkt. No. 46 at 10].

         Defendant further argues that no evidence supports Plaintiff's claim of intentional discrimination or disparate treatment. Plaintiff testified at deposition that she did not know why there was discrimination, only that she believed there to have been discrimination [Dkt. No. 46 at 12]. Defendant also contends that it properly demonstrated another reason for the denial of Plaintiff's route deviation request - Defendant's inability to restructure the nature of the bus route. As support, Defendant cites the Code of Federal Regulations applicable to the Department of Transportation. These regulations allow the denial of a modification to a service when, as in this case, a modification would ...


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