Dep't of Fair Emp't & Hous. v. Law Sch. Admission Council Inc.

896 F.Supp.2d 849

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Plaintiff,

v.LAW SCHOOL ADMISSION COUNCIL INC., et al., Defendants.

No. C–12–1830 EMC.

United States District Court, N.D. California.

Sept. 18, 2012.

Susan Marie Saylor, Department of Fair Employment & Housing, Fremont, CA, Phoebe P. Liu, California Department of Fair Employment and Housing, Los Angeles, CA, Ruth Sybil Villanueva, Department of Fair Employment and Housing, Elk Grove, CA, for Plaintiff.

Julie Marie Capell, Robert Eugene Darby, Fulbright and Jaworski LLP, Los Angeles, CA, Caroline Mew, Robert A. Burgoyne, Fulbright and Jaworski L.L.P., Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (No. Docket No. 13).

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

The California Department of Fair Employment and Housing (DFEH) filed suit against the Law School Admission Council, Inc. (LSAC) seeking damages and injunctive relief over alleged failures of the Defendant to provide disability related accommodations to test-takers of the Law School Admission Test (LSAT) in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. DFEH's Complaint (Docket No. 1, Ex. A) states that it brought this action both on behalf of seventeen named individuals and as a class action. Compl. ¶ 7–8. LSAC thereafter filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) asking this Court to dismiss Plaintiff's complaint in its entirety, or, alternatively, in substantial part. LSAC's arguments in support of its motion fall within five broad categories: (1) that DFEH lacks jurisdiction over the subject matter of this litigation, (2) that the claims asserted in DFEH's complaint fail to state a claim under Fed.R.Civ.P. 12(b)(6), (3) that certain requested money damages are unavailable as a matter of state law, (4) that certain class-based claims cannot be pursued as a matter of law because DFEH failed to follow proper administrative procedure at earlier stages in this litigation, and (5) that Doe defendants must be dismissed from the complaint because DFEH fails to plead any facts regarding their alleged actions or inactions. Having considered the parties' submissions and oral argument, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for the reasons set forth below.

II. FACTUAL & PROCEDURAL BACKGROUND

LSAC is a non-profit membership organization based in Pennsylvania that, among other things, administers the Law School Admissions Test (LSAT) to prospective law students. The LSAT is a standardized test that evaluates potential law school applicants on their acquired reading and verbal reasoning skills. Compl. ¶ 46. The test consists of a battery of five sections labeled as either reading comprehension, analytical reasoning, or logical reasoning. Id. ¶ 49. Each of these five sections consists of multiple-choice type questions, and test-takers are allotted thirty-five minutes to complete each section. Id. ¶ 47. The test also includes an unscored thirty-five minute written component, which LSAC forwards to law schools along with a test-taker's scores. Id.

DFEH's Complaint focuses on LSAC's practices in providing testing accommodations to test-takers who claim to be disabled. LSAC claims to conscientiously evaluate requests for testing accommodation to ensure that “individuals with bona fide disabilities receive accommodations, and that those without disabilities do not receive accommodations” which could provide them with an unfair advantage on the exam. Def's Motion (Docket No. 13) at 2 (quoting Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 88–89 (2d Cir.2004)).

DFEH claims that LSAC's accommodations evaluation procedures include, among other things, requirements that testing candidates requesting extra time or other accommodations for a “cognitive or psychological impairment” submit to psychoeducational and neuropsychological testing, and provide a “full diagnostic report” that includes records of the candidates' aptitude and achievement testing. Compl. ¶ 54. DFEH also claims that LSAC requires applicants to disclose in an accommodations request whether or not they took prescribed medications during medical evaluations of their condition, and if not, to explain their failure to do so. Id. ¶ 55. According to LSAC, “more than a thousand individuals request disability-based accommodations on the LSAT very year, and LSAC grants accommodations to most, but not all, of those individuals.” Def's Motion (Docket No. 13) at 2.

DFEH also alleges that LSAC maintains a policy of “flagging” the LSAT exam scores of individuals who receive disability accommodations for extra time. Compl. ¶ 56. LSAC includes a notation on an accommodated individuals' score report that the score was achieved under nonstandard time constraints, and excludes extended-time scores when calculating its LSAT percentile rankings. Id. ¶¶ 56–57. As a consequence, the fact that an individual received extended-time on the LSAT is disclosed to all law schools receiving that individual's score report. See Id. ¶ 56. However, LSAC does advise schools that extended-time score reports “should be interpreted with great sensitivity and flexibility.” Id. ¶ 56.

In 2010, DFEH received multiple written “verified complaints of discrimination” from individuals alleging that LSAC had denied them reasonable accommodations for their disabilities when taking the LSAT. Id. ¶ 19–20. These written complaints alleged that LSAC had unlawfully denied them “full and equal access to the LSAT” in violation of the California Fair Housing and Employment Act (FEHA) (Cal. Gov. Code §§ 12900 et seq.) and the Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et seq.). Compl. ¶¶ 19–20. By virtue of its incorporation into the Unruh Act, a violation of the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) also constitutes a violation of the Unruh Act. Compl. ¶ 16; see also Unruh Act, Cal. Civ.Code § 51(f).

Upon receiving these complaints, DFEH began an investigation to ascertain whether LSAC's alleged denial of full and equal access affected a larger class of test-takers. Id. ¶ 21. On July 22, 2010, DFEH issued to LSAC a document titled “Notice of Class Action Complaint and Director's Complaint.” Id. ¶ 22.; See Compl., Ex. 3. The notice defined the potentially affected class as “all disabled individuals in the State of California who have or will request an accommodation for the Law School Admission Test (LSAT), administered by the LSAC, and who have or will be unlawfully denied such request from January 19, 2009 to the conclusion of the Department's investigation of this complaint.” Id. During its investigation, DFEH sought administrative discovery to determine the identities of other individuals in California who had been denied reasonable accommodations by LSAC during the period mentioned in the notice. Id. ¶ 23. Over LSAC's objections, DFEH obtained an order from a California Superior Court directing LSAC to respond to DFEH's discovery requests. Id.

As a result of its investigation and discovery, DFEH filed an administrative accusation before the California Fair Employment and Housing Commission on February 6, 2012, which LSAC elected to have transferred to the California Superior Court in Alameda County under Cal. Gov. Code § 12965(c)(1). Compl. ¶¶ 40–42. The administrative accusation, brought on behalf of seventeen individuals as a group, and as a class action on behalf of “all disabled individuals in the State of California who requested a reasonable accommodation for the Law School Admission Test (LSAT) from January 19, 2009 to February 6, 2012,” charged LSAC with violations of the Unruh Act. Id. ¶¶ 7–8, 40. LSAC thereafter removed the matter from the Alameda County Superior Court to this Court on April 12, 2012, pursuant to 28 U.S.C. § 1441 on the basis of federal question jurisdiction and diversity jurisdiction.

DFEH's state court complaint advances the following five causes of action against LSAC for violations of the Americans with Disabilities Act:

(1) LSAC unlawfully considered mitigation measures in determining whether an impairment substantially limits a major life activity by requiring applicants for reasonable accommodations to take their prescribed medications while being evaluated, or to provide an explanation for a failure to do so, in violation of 42 U.S.C. § 12102(4)(E)(i)(I);

(2) LSAC's policy of flagging score reports of individuals receiving additional time failed to ensure that the LSAT measured aptitude, rather than disability, in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309;

(3) LSAC's flagging policy unlawfully coerced and discouraged potential applicants from seeking reasonable accommodations or punished those who received accommodations, in violation of 42 U.S.C. § 12203;

(4) LSAC breached its duty to make the LSAT accessible to disabled individuals by requiring excessive documentation and by denying reasonable accommodations, in violation of 42 U.S.C. § 12189 and 28 C.F.R. § 36.309(b)(1)(iv); and

(5) LSAC's policy of requiring excessive documentation to support accommodation requests coerced and discouraged potential applicants from seeking reasonable accommodations, in violation of 42 U.S.C. § 12203.

Compl. ¶¶ 187–216. DFEH brought the first three causes of action on behalf of all class members, while the fourth and fifth causes of actions were brought only on behalf of the seventeen named plaintiffs. Id.

LSAC filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). LSAC asserts five arguments for dismissal: (1) that DFEH lacks jurisdiction over the subject matter of this litigation, (2) that the claims asserted in DFEH's complaint fail to state a claim under Fed.R.Civ.P. 12(b)(6), (3) that certain requested money damages are unavailable as a matter of state law, (4) that certain class-based claims cannot be pursued as a matter of law because...