Qiu v. Univ. of Cincinnati, Case No. 1:18-cv-634

JUNHE QIU, Plaintiff, v. UNIVERSITY OF CINCINNATI et al., Defendants.

Case No. 1:18-cv-634

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

June 6, 2019

Litkovitz, M.J.

ORDER

Plaintiff 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 plaintiff's motion for a temporary restraining order ("TRO") after a hearing on September 18, 2018. (Doc. 10).¹ This matter is now before the Court on defendants' motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 18), plaintiff's response in opposition (Doc. 21), and defendants' reply memorandum. (Doc. 22).

I. Allegations in the Complaint (Doc. 1)

Plaintiff 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-1 visaissued 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-20.² (Id. at ¶ 3).

Plaintiff 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. (Id.).

In the 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 collegehearing panel, which found him guilty of academic dishonesty. (Id.). Defendant Losada subsequently failed plaintiff from the course. (Id.).

Plaintiff 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).

Plaintiff 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 plaintiff's absence and he was dismissed from CCM. (Id. at ¶ 33).

While 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.).

Four 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 CCM³ and monetary damages. (Doc. 1 at 18).

II. Rule 12(b) Standard

Under 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, publicrecords, items appearing in the record of the case and exhibits attached to the defendant[s'] motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n, 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 plaintiff's complaint, and [add] nothing new,' without converting the motion to dismiss into a motion for summary judgment.") (quoting Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997)).

III. Motion to Dismiss (Doc. 18)

Defendants move to dismiss all claims against defendants UC, Dr. Neville Pinto, and Dr. Catherine Losada. (Doc. 18).

A. Plaintiff's Title II ADA Claims and Rehabilitation Act Claims

Defendants argue that plaintiff's 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 F. App'x 1, 8 (6th Cir. 2007)). Defendants argue that plaintiff's 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 plaintiff's Rehabilitation Act claims, which are reviewed under the same standards governing the ADA, should be similarly dismissed. (Id. at 22-23).

In 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 forthe 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. (Id.).

Title 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...