2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-2002

Emerson v. Thiel College

Precedential or Non-Precedential: Precedential

Docket No. 01-1699

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Recommended Citation

"Emerson v. Thiel College" (2002). 2002 Decisions. Paper 384.

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PRECEDENTIAL 

 Filed July 10, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 01-1699 

JOHN M. EMERSON, 

 Appellant 

v. 

THIEL COLLEGE; RICK BROWN; 

RICK BROWN CONCRETE & MASONRY COMPANY; 

MARTHA HARTLE MUNSCH; JOAN HEALD; 

C. CARLYLE HAAYLAND; NANCY SEDERBERG; 

GERALDINE MOORE; BRUCE ARMITAGE; 

BONNIE MCCLAIN; JOYCE KEENAN; TIM ZGONC; 

MARY JO YUSKO-HOWSER; SUSAN BRECKENRIDGE; 

JUDY NEWTON; TOM NICHOLS; SHERRY LYNN COWAN; 

MERVIN NEWTON; MARK DELMARAMO; 

EMERSON HEALD; LINDA KAHLER; FRANK CONNELY 

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

(D.C. Civil No. 98-cv-00227E) 

District Judge: Honorable Sean J. McLaughlin 

Submitted Under Third Circuit LAR 34.1(a) 

May 14, 2002 

BEFORE: RENDELL, ALDISERT and GREENBERG, 

Circuit Judges 

(Filed: July 10, 2002) 

 

 John M. Emerson (Pro Se) 

 124 Fifth Avenue 

 Corry, PA 16407 

 Martha H. Munsch, Esq. 

 Reed, Smith 

 435 Sixth Avenue 

 Pittsburgh, PA 15219 

 Counsel for Appellees Thiel College, 

 Martha Hartle Munsch, 

 Joan Heald, C. Carlyle Haayland, 

 Nancy Sederberg, Geraldine Moore, 

 Bruce Armitage, Bonnie McClain, 

 Joyce Keenan, Tim Zgonc, 

 Mary Jo Yusko-Howser, 

 Susan Breckenridge, Judy Newton, 

 Tom Nichols, Sherry Lynn Cowan, 

 Mervin Newton, Mark Delmaramo, 

 Emerson Heald, Linda Kahler, and 

 Frank Connely 
 Louis C. Long, Esq. 

 Meyer, Darragh, Buckler, Bebenek 

 & Eck 

 2000 The Frick Building 

 Pittsburgh, PA 15219 

 Counsel for Appellees Rick Brown 

 and Rick Brown Concrete & 

 Masonry Company 

 2 

 

OPINION OF THE COURT 

PER CURIAM: 

Appellant John M. Emerson, proceeding pro se, appeals 

the order of the District Court dismissing his complaint 

against Thiel College ("Thiel"), Rick Brown Concrete & 

Masonry Company, an outside contractor for Thiel (the 

"Masonry Company"), Rick Brown and nineteen other 

individuals, including Thiel’s former President, Vice 

President of Academic Affairs, members of its faculty and 

staff and outside legal counsel (the "individual college 

defendants"). Emerson alleges violations of Title III of the 

Americans with Disabilities Act, 42 U.S.C. SS 12181-12189 

(the "ADA"), Section 504 of the Rehabilitation Act of 1973, 

29 U.S.C. S 794, and Title VII of the Civil Rights Act of 

1964, 42 U.S.C. SS 2000e-2000e-17. For the reasons stated 

below, we will affirm. 

I. 

Emerson enrolled in a five-week summer session at Thiel 

in July of 1996. He took a writing course, in which he 

received a grade of D+, and a humanities course, from 

which he withdrew. In the fall of 1996, Emerson enrolled in 

two computer courses, a math course and a public 

speaking course. Due to an off-campus injury, Emerson 

requested, and Thiel granted, leave to withdraw from his 

classes for medical reasons. In January of 1997, Emerson 

enrolled in math, computer, English composition and 

history courses. He withdrew from all of these courses with 

the exception of English composition, which he failed. 

Emerson received a grade of A in a one credit swimming 

class. At the end of the 1996-1997 school year, Emerson 

had earned one credit. Thiel suspended Emerson due to his 

failure to make satisfactory academic progress towards 

completion of his graduation requirements. Although Thiel 

allows suspended students to apply for readmission after 

one semester, Emerson did not seek readmission. 

Emerson avers in his amended complaint that he suffers 

from quadriplegia, neurological impairments and other 

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disabilities. He states that Thiel and his professors failed to 
accommodate his disabilities and provide the assistance he 

needed to succeed in class. Emerson alleges, among other 

things, that the faculty and staff failed to provide him 

tutors and notetakers, a desk at the front of the class and 

help with heavy objects, and that college officials failed to 

supervise the faculty and staff. He also maintains that Thiel 

failed to repair its sidewalks and install proper doors and 

ramps. Emerson seeks declaratory and injunctive relief, 

including reinstatement at Thiel, and damages. 

In January of 1999, the individual college defendants, 

Rick Brown and the Masonry Company moved to dismiss 

Emerson’s amended complaint pursuant to Federal Rule of 

Civil Procedure 12(b)(6) for failure to state a claim upon 

which relief can be granted.1 After receiving a notice of 

delinquency, on May 26, 1999, Emerson filed the last of his 

briefs in response to the motions. On August 6, 1999, 

following a hearing, the District Court granted the motions 

with respect to the individual college defendants and Rick 

Brown, and afforded Emerson ten days to replead his 

claims against the Masonry Company. 

Emerson failed to timely file a second amended complaint 

and the District Court ordered him to do so by October 8, 

1999 or show cause why his case should not be dismissed. 

The Masonry Company also renewed its motion to dismiss. 

In response to Emerson’s statement that he could not read 

the court’s orders due to the type size, on October 29, 

1999, the District Court afforded Emerson twenty days to 

amend his complaint, denied the Masonry Company’s 

motion and directed that all documents be produced in a 

larger type size. On December 3, 1999, Emerson moved to 

stay the case until February 7, 2000 because of injuries 

allegedly sustained in two car accidents. The District Court 

granted a stay until February 1 and extended its initial 

discovery and motion deadlines. 

On January 20, 2000, the Masonry Company moved the 

court to set aside the stay and grant its motion to dismiss 

_________________________________________________________________ 

1. As discussed below, the District Court ultimately dismissed the 

complaint against Thiel for failure to prosecute and comply with its 

orders. Thus, we set forth the procedural history in detail. 

 4 

 

as Emerson had not amended his complaint in accordance 

with the October 29 order. On February 9, 2000, Emerson 

moved to extend the stay until February 16. The District 

Court held a conference call with the parties and inquired 

about Emerson’s medical condition. Based upon Emerson’s 

statement that he would be able to participate in the 

litigation, the District Court denied the pending motions 

and ordered Emerson to file his second amended complaint 

by March 5, 2000 or it would dismiss the Masonry 

Company as a party. 

Emerson filed a second amended complaint and Thiel 
moved to strike it, contending that Emerson improperly 

sought to replead his claims against the individual college 

defendants and add new defendants. On May 19, 2000, the 

Masonry Company moved to dismiss the complaint, 

contending that Emerson failed to cure the deficiencies in 

the original complaint. On June 20, 2000, Thiel moved for 

summary judgment. 

Emerson did not respond to the summary judgment 

motion by the deadline in the case management order. On 

August 17, 2000, the District Court ordered Emerson to do 

so by September 11, 2000 and scheduled a hearing for 

September 14, 2000. On September 14, Emerson moved to 

stay the action until November 18, 2000 due to an injury. 

The District Court ordered Emerson to provide a 

physician’s letter confirming his medical condition by 

October 24, 2000. Emerson moved for an extension of time 

until November 10, 2000 to respond to the court’s order 

and submitted a hospital discharge summary dated June of 

2000. On November 9, 2000, he filed a doctor’s certificate 

stating that he was able to return to work or school on 

January 2, 2001. 

On November 20, 2000, the District Court scheduled a 

hearing on all pending motions for November 28. Emerson 

failed to attend. In an order entered on December 15, 2000, 

the District Court denied Emerson’s motions to stay and for 

an extension of time as moot, granted the Masonry 

Company’s motion to dismiss and granted Thiel’s motion to 

strike the second amended complaint with respect to the 

individual and new defendants. The District Court sua 

sponte extended Emerson’s time to file a response to Thiel’s 

 5 

 

summary judgment motion until January 10, 2001, and 

ordered that it would construe a failure to respond as 

consent to the relief requested. 

On January 17, 2001, Emerson moved to stay the action 

until February 22, 2001. The District Court ordered oral 

argument on the motion and on whether the action should 

be dismissed for failure to prosecute and to comply with its 

orders. On February 20, 2001, after the hearing, the 

District Court denied Emerson’s motion for a stay and 

dismissed the complaint against Thiel with prejudice for 

failure to prosecute. In the alternative, the District Court 

granted Thiel’s motion for summary judgment. This appeal 

followed. We have jurisdiction pursuant to 28 U.S.C. 

S 1291. 

II. 

We first review the District Court’s order granting the 

individual college defendants’ and Rick Brown’s motions to 

dismiss for failure to state a claim. Our standard of review 

is plenary. Menkowitz v. Pottstown Memorial Med. Ctr., 154 

F.3d 113, 115 (3d Cir. 1998). A complaint will withstand an 

attack under Federal Rule of Civil Procedure 12(b)(6) if the 
material facts as alleged, in addition to inferences drawn 

from those allegations, provide a basis for recovery. Id. at 

124-25. In dismissing Emerson’s claims, the District Court 

concluded that individuals cannot be held liable under Title 

III of the ADA, S 504 of the Rehabilitation Act and Title VII 

of the Civil Rights Act of 1964. 

Whether individuals may be liable under Title III of the 

ADA, which prohibits discrimination in places of public 

accommodation, is an issue of first impression in the courts 

of appeals. The statute provides in relevant part that: 

 No individual shall be discriminated against on the 

 basis of disability in the full and equal enjoyment of 

 the goods, services, facilities, privileges, advantages, or 

 accommodations of any place of public accommodation 

 by any person who owns, leases (or leases to), or 

 operates a place of public accommodation. 

42 U.S.C. S 12182(a)(emphasis added). The regulations 

 6 

 

under the statute provide that discrimination is prohibited 

by any private entity that owns, leases (or leases to) or 

operates a place of public accommodation, 28 C.F.R. 

S 36.201(a), and that "private entity" means a person or 

entity other than a public entity. 28 C.F.R. S 36.104. Thus, 

the individual college defendants and Brown may be liable 

under Title III if they own, lease or operate Thiel, a place of 

public accommodation. See also 28 C.F.R. App. B. S 36.104 

(discussing definition of private entity).2 

To the extent Emerson contends that the individual 

college defendants operate Thiel, in Neff v. American Dairy 

Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995), the Court 

of Appeals for the Fifth Circuit applied principles of 

statutory construction and construed the term "operate," 

which the statute does not define, in accordance with its 

ordinary meaning. The court set forth several dictionary 

definitions, including "to control or direct the functioning 

of " and "to conduct the affairs of." Id. Applying these 

definitions, we hold that the individual college defendants 

and Brown do not operate Thiel and thus are not subject to 

individual liability under Title III of the ADA. 3 

This result comports with decisions of other courts of 

appeals holding that individuals are not liable under Titles 

I and II of the ADA, which prohibit discrimination by 

employers and public entities respectively. See , e.g., Garcia 

v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 

2001)(Title II); Butler v. City of Prairie Village, 172 F.3d 736, 

744 (10th Cir. 1999)(Title I). See also Walker v. Snyder, 213 

F.3d 344, 346 (7th Cir. 2000) ("the ADA addresses its rules 

_________________________________________________________________ 

2. The parties do not dispute that Thiel is a place of public 

accommodation. 
3. In Neff, the court considered whether an entity had control over the 

alleged discriminatory denial of access to a place of public 

accommodation. Id. Neff could be construed as requiring an examination 

of whether each of the individual defendants had control over the alleged 

discriminatory denial of accommodations. We do not believe, however, 

that Congress intended to impose personal liability upon each person 

involved in Emerson’s education. Rather, as stated in Coddington v. 

Adelphi Univ., 45 F. Supp. 2d 211, 217 (E.D.N.Y. 1999), the institution 

has the power to make accommodations and thus it operates the place 

of public accommodation and is the proper defendant. 

 7 

 

to employers, places of public accommodation, and other 

organizations, not to the employees or managers of these 

organizations"). 

With respect to Emerson’s claims under S 504 of the 

Rehabilitation Act, the Court of Appeals for the Second 

Circuit, relying upon various district court decisions, has 

ruled that individuals are not liable under the statute. 

Garcia, 280 F.3d at 107. We have yet to address this 

question. We recognize that the Rehabilitation Act and the 

ADA generally are interpreted consistently. See 28 C.F.R. 

S 36.103 (incorporating the standards applied under the 

Rehabilitation Act into Title III). 

Section 504 provides in relevant part that: 

 No 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 receiving Federal financial 

 assistance . . . . 

29 U.S.C. S 794(a). "Program or activity" is defined in part 

as all of the operations of a college or university. Id. 

S 794(b)(2)(A). Section 504 applies to federal financial 

assistance recipients. United States Dep’t of Transp. v. 

Paralyzed Veterans of America, 477 U.S. 597, 605-06 

(1986). It is undisputed that Thiel is the recipient of federal 

financial assistance. Because the individual defendants do 

not receive federal aid, Emerson does not state a claim 

against them under the Rehabilitation Act.4 This result is 

consistent with decisions finding no individual liability 

under Title IX of the Education Amendments of 1972, 20 

U.S.C. S 1681(a), which prohibits discrimination on the 

basis of sex by an education program or activity receiving 

federal funding. See, e.g., Smith v. Metropolitan Sch. Dist., 

128 F.3d 1014, 1018-19 (7th Cir. 1997). 

_________________________________________________________________ 

4. Relying upon language in Paralyzed Veterans, Emerson argues that 

the individual college defendants may be liable because they are "in a 

position to accept or reject" funding. See id . at 606. The Supreme Court, 

however, did not address individual liability in Paralyzed Veterans. It 

considered whether an entity was a recipient under Section 504. 
 8 

 

Finally, the District Court properly granted the motions 

to dismiss with respect to Emerson’s Title VII claims. Title 

VII prohibits unlawful employment practices by employers. 

42 U.S.C. S 2000e-2(a). Emerson does not aver that any of 

the defendants employed him. In addition, individual 

employees are not liable under Title VII. Sheridan v. E.I. 

DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d 

Cir. 1996)(en banc).5 

III. 

The District Court dismissed with prejudice Emerson’s 

remaining claims against Thiel for failure to prosecute or to 

comply with its orders pursuant to Federal Rule of Civil 

Procedure 41(b). We review such an order for an abuse of 

discretion. Adams v. Trustees of the N.J. Brewery 

Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 

1994). While we defer to the District Court’s discretion, 

dismissal with prejudice is only appropriate in limited 

circumstances and doubts should be resolved in favor of 

reaching a decision on the merits. Id. 

To determine whether the District Court abused its 

discretion, we evaluate its balancing of the following 

factors: (1) the extent of the party’s personal responsibility; 

(2) the prejudice to the adversary caused by the failure to 

meet scheduling orders and respond to discovery; (3) a 

history of dilatoriness; (4) whether the conduct of the party 

or the attorney was willful or in bad faith; (5) the 

effectiveness of sanctions other than dismissal, which 

entails an analysis of alternative sanctions; and (6) the 

meritoriousness of the claim or defense. Poulis v. State 

Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). 

With respect to Emerson’s personal responsibility, the 

District Court recognized that because Emerson is 

proceeding pro se, his failure to comply with its orders 

_________________________________________________________________ 

5. Because Emerson does not address in his brief the District Court’s 

order dismissing his claims against the Masonry Company and granting 

Thiel’s motion to strike, we will not address that order. See Kost v. 

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993)(failure to set forth an issue 

in an appellate brief waives that issue on appeal). 

 9 

 

could not be blamed on counsel. The District Court further 

stated, and the record reflects, that there has been a 

pattern of a failure to comply with the court’s orders based 

upon unsubstantiated allegations of medical disability 

resulting from various alleged accidents. 

In considering the second Poulis factor, the District Court 

found that it would be inherently prejudicial to Thiel to 

allow the case to go to trial without considering its 
summary judgment motion. Although it is unclear why the 

court would not consider Thiel’s motion, Thiel argues that 

it has suffered prejudice because it had to wait six months 

to file its summary judgment motion due to the stay and 

eight more months for argument because of Emerson’s 

failures to respond to the motion. We agree that Thiel has 

been prejudiced by the delays. The District Court was 

unable to address Thiel’s summary judgment motion at its 

November 28, 2000 hearing due to Emerson’s failure to 

appear and it was necessary to conduct another hearing on 

February 20, 2001.6 

The procedural history of this case reflects continuous 

dilatoriness, the third Poulis factor, and is set forth above. 

While Emerson appears to argue that the District Court did 

not consider his medical problems, the record reflects the 

contrary. The District Court stayed the case initially 

without requiring Emerson to substantiate his medical 

condition. When Emerson sought additional stays, the 

District Court afforded Emerson the opportunity to submit 

documentation supporting that he was unable to proceed 

for medical reasons. Emerson failed to do so. 

With respect to whether Emerson’s conduct was willful or 

in bad faith, the District Court was unable to conclude 

whether Emerson acted in bad faith. The District Court 

found, however, that Emerson’s conduct in failing to 

comply with the court’s orders and in dragging the case out 

was willful and not merely negligent or inadvertent. The 

record supports this conclusion. 

_________________________________________________________________ 

6. Although Thiel’s counsel stated at the February 2001 hearing that 

Emerson failed to appear for the second day of his deposition and 

respond to written discovery, Thiel does not contend that it was 

prejudiced by these failures. 

 10 

 

The District Court found no effective alternative sanctions 

to dismissal. It stated that an assessment of attorney’s fees 

was not a serious consideration given Emerson’s financial 

situation. Emerson proceeded in forma pauperis in District 

Court. We agree that monetary sanctions would not be an 

effective alternative. 

Finally, the District Court concluded that Emerson’s 

allegations with respect to Thiel are facially meritorious. 

Thiel, however, plead in part that it made numerous 

accommodations for Emerson. The meritoriousness factor is 

neutral and not dispositive. 

Balancing these factors, we do not find that the District 

Court abused its discretion in dismissing Emerson’s case 

for failure to prosecute and comply with its orders. 

Emerson was afforded a stay and numerous extensions of 

time. He was given the opportunity to substantiate that he 

was unable to proceed for medical reasons and he failed to 

do so. Given his behavior over the more than two years that 
the case was pending, the District Court had no indication 

that Emerson would prosecute his case as opposed to seek 

additional stays.7 

Accordingly, we will AFFIRM the District Court’s order 

entered on February 21, 2001. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

________________________________________________________________ 

7. Based upon this conclusion, we find it unnecessary to address the 

District Court’s alternative ruling granting Thiel’s motion for summary 

judgment. 

 11