framework of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) and Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

Based on the affidavits, exhibits and Response of Plaintiff, however, Cox
has not presented a prima facie claim of retaliation. As such, there is no need to
engage in any burden shifting analysis. Specifically, Plaintiff has not established
what “adverse action” the University took against him. Additionally, he has not
shown that any “but for” causal connection existed between that action and Cox's
protected activity. Cox alleges only that he did not receive “general
accommodations” for his first semester of law school. However, that assertion
rings hollow given that he did not attend the required meeting with the OLR until
November 16, 2016, with only two weeks of classes remaining. Moreover,
assuming that the “adverse action” is Plaintiff's dismissal from UDSL, it is
“[u]ndisputed” by Cox that he was “dismissed for poor academic performance.”
Id4

Because the Court finds that there is no genuine dispute of a material fact
that Plaintiff was retaliated against under the Rehabilitation Act and the ADA as
alleged in Counts | and Ill, Defendant’s motion for summary judgment as to

Plaintiff's claims for retaliation is sustained.

4 Plaintiff later argues in his Response that because he was not provided “assistive
technology assistance” during the Fall 2016 Semester, the grades from that semester
should not be used to calculate his "GPA for any purpose.” Doc. #48, PAGEID#265. He
does not address, however, that his GPA for the Spring 2017 Semester was lower than
the prior semester even though he had been provided reasonable accommodation.,

14


Plaintiff's academic probation was discussed with him by Lori E. Shaw, the
Associate Dean for Academic Affairs & Professor of Lawyering Skills and later
confirmed in a letter to him dated January 11, 2017.’ Doc. #42-2, PAGEID#231-
232. The January 11, 2017, letter also advised Plaintiff that he would be dismissed
at the end of the second semester if his GPA was less than 2.0 at the end of the
Spring 2017 Semester.

The Accommodation Letter for the Spring 2017 Semester was issued
November 23, 2016, and Plaintiff was told to meet with the Assistant Dean of
Student Affairs and Registrar at the Law School. /d. Plaintiff accomplished this
sometime after January 26, 2017. /d. Plaintiff admits that other than
approximately two weeks of the Spring 2017 Semester, he received all the
requested accommodations for that semester. Doc. #42-3, PAGEID#239.

At the end of the Spring 2017 Semester, Cox’s cumulative GPA was below a

2.0 and he was academically dismissed. Doc. #42-2, PAGEID#216.

The University states that Plaintiff missed the deadline to receive
accommodations for the Fall 2016 Semester. Cox admits that he did not submit
an “Exam Accommodation and Deferral Form” request for accommodations for
the Fall 2016 Final Examinations. Doc. #42-3, PAGEID#238. He contends that he
did not request testing accommodations for the Fall 2016 Semester. Doc. #48,

PAGEID#262. Instead, he asserts that that “it was general accommodations” that

'The January 11, 2017 letter, Doc. #42-2, incorrectly stated that Plaintiff's GPA at the end
of the fall Semester was 1.95 when, in fact, it was 1.90. Doc. #42-2, PAGEID#216.

5


following: “(1) intentional action on the basis of disability, (2) failure to provide
reasonable accommodation; or (3) disparate treatment.” Velzen v. Grand Valley
State Univ., 902 F.Supp.2d 1038, 1045 (W.D. Mich. 2012) (citing McPherson v.
Mich. High Sch. Athletic Ass‘n, Inc., 119 F.3d 453, 460-61 (6th Cir. 1997)).

Based on the allegations of the Amended Complaint and Plaintiff's
Response, the claims under the Rehabilitation Act and the ADA are failure to
accommodate claims. To establish a failure to accommodate claim in this case,
Cox must show that: (1) he is disabled within the meaning of the Rehabilitation
Act and the ADA; (2) he is otherwise qualified, with or without reasonable
accommodation; (3) the University knew or had reason to know about his
disability; (4) he requested an accommodation; and (5) the University failed to
provide the necessary accommodation. Johnson v Cleveland City School Dist.,
443 Fed. Appx. 974 (6th Cir. 2011). See DiCarlo v. Potter, 358 F.3d 408, 419 (6th
Cir.2004).

Defendant asserts that Cox has not established a prima facie case fora
failure to accommodate claim. Specifically, the University asserts that the first
element has not been met since the only records ever presented by Plaintiff were
those establishing a disability in 2013. The second element, that Cox was
otherwise qualified, has also not been met. According to Defendant, even with
accommodations for the Spring 2017 Semester, Cox’s GPA was 1.32. The
University further contends that the third and fourth element are not met, since

Cox must provide “a proper diagnosis” of his claimed disability, “specifically

10


doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the
[unverified] pleadings” and present some type of evidentiary material in support
of its position. Ce/otex, 477 U.S. at 324. “The plaintiff must present more than a
scintilla of evidence in support of his position; the evidence must be such that a
jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.
v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment will not lie if the
dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248. In determining whether a genuine dispute of material fact exists, a
court must assume as true the evidence of the nonmoving party and draw all
reasonable inferences in favor of that party. /d. at 255. If the parties present
conflicting evidence, a court may not decide which evidence to believe.
Credibility determinations must be left to the fact-finder. 10A Wright, Miller &
Kane, Federal Practice and Procedure Civil 3d § 2726 (1998). In determining
whether a genuine dispute of material fact exists, a court need only consider the
materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A district court is not...
obligated to wade through and search the entire record for some specific facts

that might support the nonmoving party's claim.” /nterRoyal Corp. v. Sponseller,


he “applied for” and although approved for them, he “did not receive [them] until
later on in the Spring 2017 [S]emester.” /d. He states that he “was not made
aware that classroom/study accommodations were separate and apart from
exam accommodations until he was made aware that [his 2017 Spring Semester]

accommodations were approved.” Doc. #42-3, PAGEID#238.

I. Motion for Summary Judgment

Summary judgment must be entered “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Ce/otex
Corp.v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the
initial responsibility of informing the court of the basis for its motion and
identifying those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. /d. at 323; see a/so Boretti v. Wiscomb, 930
F.2d 1150, 1156 (6th Cir. 1991).

“Once the moving party has met its initial burden, the nonmoving party
must present evidence that creates a genuine issue of material fact making it
necessary to resolve the difference at trial.” 7a/ley v. Bravo Pitino Rest., Ltd., 61
F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Once the burden of production has so shifted, the party opposing
summary judgment cannot rest on its pleadings or merely reassert its previous

allegations. It is not sufficient to “simply show that there is some metaphysical


because Plaintiff is a pro se plaintiff, the Court must permit the adjudication of pro
se claims on the merits, rather than to order their dismissal on technical
grounds.” Friedman v. Campbell, No. 98-6728, 199 WL 1045281, at *1 (6th Cir.
Nov. 8, 1999.) Accordingly, the Court will consider the “facts” in the Response as
being submitted under “penalty of perjury.”

B. Disability and Failure to Accommodate Under the Rehabilitation Act and
the ADA (Count I, II and Ill)

Counts I, Il and IIl of the Amended Complaint allege that Defendant violated
the Rehabilitation Act and the ADA by discriminating against Cox because of his
disability and denying him “reasonable academic accommodations.” Because in
this case “the reach and requirements of [the Rehabilitation Act and the ADA] are
precisely the same,” S.S. v. Eastern Kentucky University, 532 F.3d 445 (6th Cir.
2008) (quoting Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 n. 6 (2d Cir.2002),
Plaintiff's claims under these two statutes will be analyzed together.’ In order to

succeed on these claims, however, Cox must establish at least one of the

3“Title Il of the ADA 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. Section 504 of the Rehabilitation Act likewise
provides that ‘[n]o otherwise qualified individual with a disability in the United States ...
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. § 794(a).

Apart from [8 504'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.” Eastern Kentucky University, 532
F.3d at 453.


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TROY COX,
Plaintiff,
Case No. 3:17-cv-00395
v: JUDGE WALTER H. RICE
UNIVERSITY OF DAYTON,
Defendant.

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DOC. # 42); JUDGMENT TO ENTER IN
FAVOR OF DEFENDANT AND AGAINST PLAINTIFF; TERMINATION
ENTRY

Plaintiff, Troy Cox (“Cox” or “Plaintiff”), has filed an Amended Complaint,
Doc. #31, against Defendant, the University of Dayton (the “University” or
“Defendant”). The Amended Complaint alleges five counts and seeks relief under
the Rehabilitation Act of 1973, 29 U.S.C. §794 (“Rehabilitation Act”), the
Americans with Disabilities Act, 28 U.S.C. 88 1331 and 1334 (“ADA”) and Ohio
Revised Code § 4112.02, et seq., (“Ohio Civil Rights Act”). /a. These federal and
state law claims allege, in general, disability discrimination, failure to
accommodate and retaliation.

This matter is before the Court pursuant to a motion for summary

judgment, Doc. #42, filed by the University. Cox has filed “Plaintiff's Response to


asserts that “[T]he Complaint contains answers to all this and more in page after
page of detailed allegations and exhibits. Under any reading of the applicable
standard requiring particularity, the Plaintiff meets and exceeds his pleading
obligations.” /d. Plaintiff argues that he filled out the IAR, which is not disputed
by Defendant, and that he took that form, which the University already had,
“along with full [complete] copy of disabilities paperwork from the VA, along with
additional disabilities documents from Eastern Kentucky University” to “the first
meeting with Brenda Cooper of the OLR office.” Doc. #48, PAGEID#264. Although
Plaintiff does not state when this first meeting took place, the Cooper Affidavit
states that due to Plaintiff's cancellations and delayed responses by him to her
emails, the first meeting did not occur until November 16, 2016. Doc. #42-1,
PAGEID#183. Because of the upcoming Thanksgiving break, at the time of the
first meeting, there were approximately 2 weeks remaining of classes before final
examinations. Doc. #42-2, PAGEID#226. Additionally, the medical records and VA
forms allegedly provided by Plaintiff at the November 16, 2016, meeting were
over three years old. Plaintiff apparently sent “a more recent version of
documentation for disability” to the OLR on November 21, 2016. Based on
Plaintiff's Response, his exhibits, as well as the affidavits and exhibits of
Defendant, Plaintiff completed the first step in the process for obtaining
reasonable accommodations for the Fall 2016 Semester, by submitting an IAR
Form to the OLR in August 2016. However, there is no genuine dispute of a

material fact that Cox failed to schedule timely a meeting with the OLR, provide

12


request[] an accommodation” of it and meet with the OLR to discuss his
accommodations. Carten v. Kent State Univ., 78 F. App’x. 499, 500-01 (6th Cir.
2003) (citing Ka/tenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 437 (6th
Cir. 1998)). According to the Cooper Affidavit, Plaintiff did not provide any
documentation to support his disability or need for accommodation when he
submitted his [AR Form in August 2016 and he failed to attend the September 1,
2016 meeting to discuss his accommodations. Doc. #42-1, PAGEID##182-183. As
for the fifth element, Defendant maintains that Plaintiff missed the deadline for
reasonable accommodations for the Fall 2016 Semester and Plaintiff agrees that,
other than approximately two weeks of the Spring 2017 Semester, he received all
the requested accommodations for that semester. Doc. #42-1, PAGEID#184; Doc.
#42-3, PAGEID#239. As such, the University argues, no prima facie case exists for
a failure to provide reasonable accommodations under the Rehabilitation Act and
the ADA.

Cox’s Response concedes that general and testing accommodations for the
Spring 2017 Semester and testing accommodations for the Fall 2016 Semester are
irrelevant. Doc. #48, PAGEID#262. Instead, Plaintiff argues that the issue is
Defendant's failure to provide him with reasonable “general” accommodations
for the 2016 Fall Semester. His Response, however, fails to provide any facts in
support of this argument.

Cox’s Response states that he disputes Defendant’s statement that he

“[Flailed to comply with accommodations|‘] request process.” The Response also

11


889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). If it so
chooses, however, the Court may also consider other materials in the record. Fed.

R. Civ. P. 56(c)(3).

I. Legal Analysis

A. Introduction

Defendant has attached detailed affidavits, along with exhibits, of Brenda D.
Cooper, the Assistant Director of the OLR for the University (“Cooper Affidavit”),
and Lori E. Shaw, the Associate Dean for Academic Affairs at UDSL (“Shaw
Affidavit”), to its Motion for Summary Judgment. Doc. #42-1; Doc. #42-2.
Plaintiff's Response includes as exhibits an “Accommodation Letter” from the
University, Doc. 48-1, PAGEID#270, along with numerous documents from EKU’s
Disabilities Services concerning Plaintiff's accommodations allegedly received in
connection with his undergraduate studies, as well as letters and applications
from the VA, Doc. #48-2, PAGEID##271-381. Also included as a separate exhibit is
Plaintiff's IAR submitted to the OLR in August 2016. Doc. #48-2, PAGEID#383.
Plaintiff's Response also includes a statement from him that the “facts in the
foregoing document” are true and correct. Doc. #48, PAGEID#261. Although the

“facts” from Plaintiff's Response are not submitted under penalty of perjury,”

? Although a formal affidavit is no longer required under Rule 56, 28 U.S.C. § 1746, the
unsworn declaration, certificate, verification, or statement must be submitted under
penalty of perjury to substitute for an affidavit. Fed. R. Civ. P. 56 Advisory Committee
Notes, 2010 Amendment.


advising that incoming students should schedule an appointment with the
OLR “as close to the beginning of the semester as possible.” Doc. #42-1,
PAGEID#181. Moreover, students are told that they may contact the OLR in
the summer “but you will need a meeting at the beginning of the semester.”
Id., PAGEID#182.

Upon receipt of Cox’s IAR, the OLR automatically sent him a notice telling
him to contact the OLR for an appointment. /d., PAGEID#183. Cox scheduled an
appointment for September 1, 2016, with the OLR, but did not attend that
meeting. /d., PAGEID#183. The OLR office scheduled a subsequent meeting and
when Plaintiff failed to attend that meeting, an email dated September 21, 2016,
was sent by the OLR to Cox. /d. Finally, on October 28, 2016, Plaintiff responded
and forwarded “an old disabilities rating from the VA,” with promises to provide
“an updated version” once he received further information “from the VA on the
appeals that have been made.” /d., PAGEID#194. A meeting with the OLR was
still required. This meeting finally occurred on November 16, 2016. /d.,
PAGEID#184. On November 21, 2016, Plaintiff e-mailed medical documentation
from the VA dated February 2013, to the OLR. /ad. Although this medical
information was not current, following consultation with the Law School Dean of
Students, it was accepted with accommodations to begin for the Spring 2017
Semester. /a.

At the end of the Fall 2016 Semester, Plaintiff's grade point average

(“GPA”) was below 2.20. As such, he was placed on academic probation.


D. Disability Discrimination, Failure to Accommodate and Retaliation
Claims under the Ohio Civil Rights Act (Counts IV and V)

Counts IV and V of Plaintiff's Amended Complaint allege claims of disability
discrimination, failure to accommodate and retaliation under the Ohio Civil Rights
Act. Claims “made pursuant to the Ohio Civil Rights Act, the Rehabilitation Act,
and the ADA” are analyzed “under a single framework.” Wheat v. Columbus Ba.
of Educ., 644 Fed. Appx. 427, 439 (6th Cir. 2016) (citing Jakubowski v. Christ Hosp.,
Inc., 627 F.3d 195, 201 (6th Cir.2010).

The Court has previously analyzed Plaintiff's claims for disability
discrimination, failure to accommodate and retaliation under the Rehabilitation
Act and the ADA and found that Defendant's motion for summary judgment
should be sustained. Because the analysis of the federal claims and state claims
is largely the same under both statutes, Defendant's motion for summary
judgment for claims alleged in Counts IV and V under the Ohio Civil Rights Act,

Counts IV and V, is sustained.

IV. Conclusion
For the reasons set forth above, Defendant's Motion for Summary
Judgment, Doc. #42, is SUSTAINED. Judgment is to enter in favor of Defendant,

the University of Dayton, and against Plaintiff, Troy Cox.

15


must contain a clear diagnostic statement from a licensed or otherwise
properly credentialed professional. The information submitted must also
explain how the disabling condition currently affects the individual and
provide recommendations for the accommodations. Doc. 42-1, PAGEID#181.

Cox listed his disability in his [AR as “Cognitive (head injury, TBI, etc.),

Mobility, Psychiatric (Depression, Anxiety, Obsessive Compulsive Disorder, Bi-
Polar, etc.).” Doc. #42-1, PAGEID##183 and 189. In describing his disability, he
indicated that he previously suffered a broken back and neck that sometimes
renders him unable to sit for even short periods and that he further suffers from
severe and debilitating migraines. Plaintiff also indicated that as a retired military
combat veteran, he suffered from PTSD and anxiety. /d. In his IAR, he requested
additional time to take tests, to complete assignments and to use dictation
software. He also requested a disabled parking pass. Cox indicated that he had
received these accommodations at Eastern Kentucky University. /d.

Following the submission of the IAR, a student at the University is
required to meet with the OLR representative. Additionally, a law student,
such as Cox, must make his request for accommodations known to the Law
School's Dean of Students and the Associate Dean for Academic Affairs as
soon as possible. Assuming accommodations are recommended by the
OLR, the draft accommodations must be given to the Law School’s Associate
Dean for Academic Affairs for review. /d., PAGEID#182. Academic

accommodations are explained in more detail online with the University,


Defendant's Motion for Summary Judgment Pursuant to Rule 12(b)(6)”
(“Response”), Doc. #48, and Defendant has filed a reply, Doc. #49.

For the reasons set forth below, Defendant's motion for summary
judgment, Doc. #42, is sustained. Plaintiff's claims for disability discrimination
and failure to accommodate under the Rehabilitation Act and the ADA as alleged
in Counts |, II and Ill, retaliation under the Rehabilitation Act and the ADA as
alleged in Counts | and III and disability discrimination, failure to accommodate
and retaliation under the Ohio Civil Rights Act as alleged in Counts IV and V, are

dismissed with prejudice.

I. Background Facts

Plaintiff is a 2013 honorably discharged Gulf War veteran from the United
States Navy. Doc. #31, PAGEID##85-86. He graduated from Eastern Kentucky
University and was accepted and enrolled at the University of Dayton, College of
Law, (“UDSL”) for the Fall 2016 Semester. /d. Classes were scheduled to begin
on August 29, 2016, and because Cox claimed certain service related disabilities,
he submitted, in August of 2016, an Initial Accommodation Request, (“IAR”), to
the University’s Office of Learning Resources/Disability Resources, (“OLR”). Doc.
#42-1, PAGEID##181-182. The submission of the IAR begins the process of
obtaining reasonable accommodations. The OLR guidelines, which are on the
University’s website, require a student requesting an accommodation at the

University to also provide supporting documentation. This documentation


current documentation to them and apprise the UDSL of his need for “general
accommodations” for the Fall 2016 Semester.

Accordingly, Defendant’s motion for summary judgment as to Plaintiff's
claims for disability and failure to accommodate under the Rehabilitation Act and
the ADA, as alleged in Counts |, Il and Il, is sustained.

C. Retaliation Claims under the Rehabilitation Act and the ADA (Counts |
and III)

Plaintiff's claims of retaliation, alleged in Counts | and III, are based on the
Rehabilitation Act and the ADA. Because the retaliation language in both statutes
are similar, 42 U.S.C. § 12203(a) and See 29 U.S.C. § 794(a), cases interpreting
retaliation claims under these statutes are construed similarly. A.C. v. She/by
County Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013). To establish a prima facie
case of retaliation, Cox must show that he (1) engaged in a statutorily protected
activity, (2) the University knew about his protected activity, (3) the University took
an adverse action against him and (4) a causal connection existed between the
adverse action and Cox's protected activity. She/by County Ba. of Educ., 711 F.3d
at 697. Although the burden of establishing a retaliation action in these cases “is
not onerous,” Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001), a “but for”
causation, between the protected activity and the adverse action, is required.
EEOC v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (citing Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 360). Assuming a prima facie case is

established, a retaliation claim is analyzed under the familiar burden-shifting


The captioned cause is hereby ordered terminated upon the docket records
of the United States District Court for the Southern District of Ohio, Western

Division, at Dayton.

Date: March 12, 2020 LR vi Jv

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

16