NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2055

_____________

REBECCA ANN SCHNEIDER,

 Appellant

v.

DARSHAN SHAH, Special Accommodations Officer; FAIRLEIGH DICKINSON 

UNIVERSITY; RITA DE LILLO, Assistant Director Paralegal Studies Program

____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2:11-cv-02266)

District Judge: Hon. Stanley R. Chesler

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 15, 2012

Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

(Filed: December 4, 2012 )

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OPINION

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CHAGARES, Circuit Judge.

Plaintiff Rebecca Schneider appeals the District Court‟s grant of summary 

judgment in favor of Fairleigh Dickinson University (“the University”), the University‟s 
2

Special Accommodations Officer, Darshan Shah, and the University‟s Assistant Director 

of the Paralegal Studies Program, Rita DeLillo (collectively, “the defendants”). 

Schneider sued the defendants for violations of the Americans with Disabilities Act 

(“ADA”) and New Jersey‟s Law Against Discrimination (“NJLAD”). For the reasons 

that follow, we will affirm the District Court‟s grant of summary judgment. 

I.

We write solely for the benefit of the parties and recite only those facts relevant to 

our disposition. Schneider‟s lawsuit arose from her participation in Fairleigh Dickinson 

University‟s Paralegal Studies Program. She enrolled in the program in the fall of 2010. 

On October 21, 2010, Schneider received and signed a copy of the “Paralegal Studies 

Program Guidelines,” which detailed the program‟s attendance policy and the procedure 

for requesting special accommodations. Schneider eventually failed two of her courses, 

Estates, Trusts, and Wills (“Estates”), and Corporate Law. She failed Estates due largely 

to her poor grade on the final exam and Corporate Law due to excessive absences. The 

University notified Schneider of the Estates failure on November 11, 2010, and the 

Corporate Law failure on March 28, 2011. Schneider describes the notification of her 

failure in Corporate Law as the moment “that she decided to immediately and formally 

seek special accommodations.” Schneider Br. in Opp‟n to Summ. J. 5.

On March 28, 2011, Schneider gave her father and attorney, Elias Schneider, a 

$10,500 retainer check. Three days later, on March 31, 2011, Schneider signed a retainer 

agreement, in which she agreed that Mr. Schneider would represent her in an ADA and 

NJLAD “legal matter.” That same day, Mr. Schneider first communicated Schneider‟s 
3

disabilities to the University. The letter detailed back injuries that Schneider sustained in 

an October 2000 car accident and attributed any excessive absences to her need for 

caution during the winter in light of her physical condition. A second letter from Mr. 

Schneider, dated April 5, 2011, disclosed Schneider‟s mental health issues, detailed her 

inability to sit for long periods of time, appealed her grade, and stated that, if resolution 

were not possible, “I will have no option but to resort to the US Federal District Court in 

an action for violations of Americans [w]ith Disabilities Act as well [as] claims under the 

NJ Law Against Discrimination. It will not be the first time I have had to file such a 

claim.” Supplemental Appendix 188. 

A series of communications between Schneider, Mr. Schneider, and various 

officials at the University ensued over the next several weeks. The Schneiders and the 

University‟s officials disagreed over the documentation necessary to establish 

Schneider‟s disability. On April 19, 2011, the University‟s General Counsel requested 

that Schneider redirect all correspondence to the General Counsel‟s office in light of the 

threat of litigation. On April 21, 2011, Schneider filed suit. Schneider ultimately

completed the Paralegal Studies Program four months later, in August 2011. In her brief 

in opposition to summary judgment, Schneider conceded that the University ultimately 

resolved “by way of accommodations” the “two essential parts of the case”— her failures 

in Estates and Corporate Law. Schneider Br. in Opp‟n to Summ. J. 4. In particular, the 

University “directed that Rebecca‟s grade in Corporate law be changed from the 

incomplete or failure to „B-‟” and allowed Schneider extended test-taking time, a 
4

distraction-free test taking environment, preferential seating, and breaks in between long 

class sessions when she retook Estates. Schneider Br. in Opp‟n to Summ. J. 8-9. 

Schneider‟s amended complaint, filed April 28, 2011, alleged one count of failure 

to provide reasonable accommodations in violation of the ADA and one count of 

discriminatory treatment in violation of the NJLAD. Schneider sought a mandatory 

injunction, monetary damages, and attorney‟s fees. After discovery, the defendants 

moved for summary judgment on both counts. The District Court granted the motion and 

entered judgment in favor of the defendants. The court understood Schneider‟s brief in 

opposition to summary judgment to allege three types of ADA and NJLAD violations: 

(1) “violations based on unreasonable delay”; (2) “violations based on failure to 

participate in the „interactive process‟ by communicating with Plaintiff‟s father/counsel”; 

and (3) “violations based on demands for documentation.” Schneider Appendix (“App.”)

8. The court held that Schneider‟s decision to file suit terminated the University‟s 

obligation to participate in an interactive process and assessed the University‟s response 

in the twenty-two days between notification and filing. The court concluded that “[t]he 

undisputed evidence is that the University acted promptly to remedy Plaintiff‟s 

grievances and to accommodate her, so that Plaintiff swiftly achieved her desired 

educational goal.” App. 16. 

II.

The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. 
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This Court exercises plenary review over an order granting summary judgment 

and applies “the same standard that the lower court should have applied.” Farrell v. 

Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). “Summary judgment is 

appropriate „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.‟” United States v. Donovan, 

661 F.3d 174, 184-85 (3d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). The party that seeks 

summary judgment must demonstrate “„the absence of a genuine issue of material fact.‟” 

Id. at 185 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the moving 

party carries this initial burden, „the nonmoving party must come forward with specific 

facts showing that there is a genuine issue for trial‟ and do more than „simply show that 

there is some metaphysical doubt as to the material facts.‟” Id. (quoting Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A material fact is one 

that “would affect the outcome of the suit as determined by the substantive law.” Gray v. 

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A court ruling on a motion 

for summary judgment will “„view the facts in the light most favorable to the nonmoving 

party and draw all inferences in that party's favor.‟” Farrell, 206 F.3d at 278. 

III.

Schneider seeks reversal of the District Court‟s grant of summary judgment. We 

understand Schneider‟s appeal to this Court as primarily a request for attorney‟s fees, 

along with a challenge to the District Court‟s understanding of a “reasonable 

accommodation” and “interactive process” as those terms relate to any remaining claims 

for relief. Schneider also seeks a different disposition of her NJLAD claim.
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A.

Schneider asserts that the District Court ignored the New Jersey Supreme Court on 

a matter of state law by declining to award attorney‟s fees. Schneider argues that New 

Jersey has adopted the catalyst theory of attorney‟s fees for NJLAD suits. Under that

theory, Schneider argues, she is the prevailing party because the litigation was the 

catalyst for the relief received. We do not agree.1 

The NJLAD permits an award of attorney‟s fees to the prevailing party. N.J. Stat. 

Ann. § 10:5-27.1. To determine the prevailing party under the catalyst theory, courts 

look not to a plaintiff‟s success in obtaining a final judgment but instead “to whether a 

plaintiff‟s lawsuit acted as a catalyst that prompted [a] defendant to take action and 

correct an unlawful practice.” Mason v. City of Hoboken, 951 A.2d 1017, 1030 (N.J. 

2008). To establish that the lawsuit acted as the catalyst for the defendant‟s corrective 

action, the plaintiff must demonstrate: “(1) a „factual causal nexus between plaintiff‟s 

litigation and the relief ultimately achieved‟; and (2) „that the relief ultimately secured by 

plaintiffs had a basis in law.‟” Id. at 1030, 1032 (quoting Singer v. State, 472 A.2d 138, 

 

1

 Defendants argue that Schneider waived her right to appeal the issue of attorney‟s fees 

because she never moved for summary judgment on that basis. Though we agree that 

Schneider provided no argument as to why she is a prevailing party entitled to attorney‟s 

fees, we will nonetheless review her claim on the merits because her amended complaint 

sought attorney‟s fees and because she advanced the catalyst theory of attorney‟s fees, 

however briefly, in her brief in opposition to summary judgment. See Northview Motors, 

Inc. v. Chrysler Motors Corp., 227 F.3d 78, 90 n.5 (3d Cir. 2000) (declining to hold that 

defendant waived argument by not moving for summary judgment on that basis); Huber 

v. Taylor, 469 F.3d 67, 75 (3d Cir. 2006) (concluding that party did not waive right to 

raise issue on appeal when issue was “inherent in the parties‟ positions throughout [the] 

case”). 
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142 (N.J. 1984)). To evaluate the presence or absence of a causal nexus, courts will 

conduct a “fact-sensitive inquiry on a case-by-case basis” and assess “the reasonableness 

of, and motivations for, an agency‟s decisions.” Id. at 1033. The basis in law prong 

provides “a check against groundless or harassing litigation.” Jones v. Hayman, 13 A.3d 

416, 427 (N.J. Super. App. Div. 2011). Courts will “consider plaintiffs‟ success in 

obtaining interim relief, as well as in defending against defendants‟ efforts for summary 

disposition of the litigation as a matter of law.” Id. For instance, a plaintiff who obtains 

a preliminary injunction and survives a motion to dismiss will have a strong argument 

under the basis in law prong. See id. 

The New Jersey Supreme Court has not yet applied the catalyst theory to the 

NJLAD. Even assuming arguendo that the theory applies to the award of attorney‟s fees 

under the NJLAD, Schneider‟s claim cannot succeed. Schneider does not explain why 

the catalyst theory would allow the court to award attorney‟s fees in this case beyond the 

general assertion that “[t]he New Jersey LAD looks to see if the suit was the catalyst for 

the obtaining of those benefits. That is where the focus of the court below should have 

been.” Schneider‟s Br. 21. First, we observe that the District Court properly omitted 

attorney‟s fees from its analysis because Schneider did not cross-move for summary 

judgment below.2 Second, we cannot agree that Schneider‟s lawsuit acted as the catalyst 

 

2 Though Schneider set forth the legal standards that govern the catalyst theory in her 

brief in opposition to summary judgment, that submission never applied the relevant case 

law to the facts of the case. Instead, she observed that “[i]f plaintiff were currently 

pursuing her own motion for summary judgment, Plaintiff would [be] entitled [to] 

judgment liability under LAD and to fee shifting under the Law Against 

Discrimination . . .” Schneider‟s Br. in Opp‟n to Summ. J. 18. 
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for the University‟s actions. Schneider first notified the University of her disability on 

March 31, 2011. Her father first threatened litigation on April 5, 2011. She filed suit on 

April 21, 2011. The University requested additional information and ultimately 

accommodated Schneider by allowing her to retake Estates with accommodations and 

changing her grade in Corporate Law. Schneider provides no evidence that the threat of 

pending litigation, rather than a timely response to her newly disclosed disabilities, 

motivated the University‟s prompt response. 

B.

Schneider next disputes the District Court‟s conclusion that “requested 

modifications that conflict with educational policies that have been accepted in writing, 

which are requested after-the-fact and which therefore constitute a retrospective attempt 

to change the agreement already accepted, and which relate to a period in which no notice 

of disability has been given, cannot be reasonable.” App. 15. She also contends that the 

University failed to engage in a good faith, interactive process as required by the ADA 

and NJLAD. 

“A school may not discriminate on the basis of a student's disability nor deny a 

reasonable accommodation to a disabled student.” Regents of Mercersburg Coll. v. 

Republic Franklin Ins. Co., 458 F.3d 159, 166 (3d Cir. 2006). When a plaintiff alleges a 

failure to accommodate under Title III of the ADA, she must establish “(1) that the 

plaintiff is disabled and otherwise qualified academically, (2) that the defendant is a 

private entity that owns, leases or operates a place of public accommodation (for ADA 

 
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purposes) . . . , and (3) „that the defendant failed to make reasonable modifications that 

would accommodate the plaintiff's disability without fundamentally altering the nature of 

the public accommodation.‟” Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 

2006); see also Victor v. State, 4 A.3d 126, 142-43 (N.J. 2010) (analogizing reasonable 

accommodations under the NJLAD to those required by the ADA). 

Schneider asserts that “case law is replete with just such cases of „after the fact 

requests‟ for reasonable accommodations.” Schneider Br. 22. In furtherance of this 

claim, Schneider relies on cases that do not support her argument. See, e.g., Frank v. 

Univ. of Toledo, 621 F. Supp. 2d 475, 488 (N.D. Ohio 2007) (holding that plaintiff did 

not make a reasonable request for an accommodation until “after the exam results were 

communicated to him” and concluding that subsequent attempts to accommodate plaintiff 

were reasonable).3 More importantly, the University promptly acceded to Schneider‟s 

after the fact requests for accommodation. The record demonstrates that the University 

accommodated her by allowing her to retake her Estates course with special 

accommodations and by altering her grade in Corporate Law. Schneider concedes that 

 

3

 Schneider relies on three additional cases in support of this proposition, all inapposite. 

See Bowers v. Bethany Med. Ctr., 959 F. Supp. 1385, 1391 (D. Kan. 1997) (holding that 

employer need not provide plaintiff with third opportunity to pass mandatory computer 

examination when “her inability to pass the test in two takes had no nexus to her 

disability”); Schroll v. Bd. of Educ. Champaign Cmty. Unit Sch. Dist. #4, No. 06-2200, 

2007 WL 2681207, at *1-3 (C.D. Ill. Aug. 10, 2007) (adjudicating lawsuit filed pursuant 

to the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et seq., that 

involved an individualized education program that allowed for retesting); Kushner v. 

NationsBank of Texas, N.A., No. 3:95-CV-2562-BF, 1998 WL 512945, at *8 (N.D. Tex. 

Aug. 12, 1998) (holding, in case involving plaintiff‟s failure on test involved in a bank‟s 

analyst training program, that plaintiff had not established disability and thus not 

reaching the issue of reasonable accommodation). 
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the University ultimately provided her with reasonable accommodations. See Schneider 

Br. in Opp‟n to Summ. J. 4 (“The essence of the suit was the seeking of 

relief/accommodations from plaintiff[‟s] not passing two segments of the program, 

specifically Estates Wills and Trusts . . . and Corporate Law . . . . These two essential 

parts of the case have, in fact, now been resolved by way of accommodations provided by 

defendants.”); Schneider Br. 3 (stating that plaintiff “received 95% of what [she] w[as] 

looking for if you do not include counsel fees”). She obtained her paralegal certificate 

in August 2011, just five months after she notified the University of her disability. In 

light of the University‟s actions upon notification of Schneider‟s disability, we hold that 

the University provided reasonable accommodations. 

Schneider also contends that her request for accommodations triggered the 

University‟s obligation to engage in an interactive process geared toward providing

reasonable accommodations. A plaintiff may demonstrate a defendant‟s failure to engage 

in a good faith, interactive process by showing that “„(1) the [defendant] knew about the 

[plaintiff‟s] disability; (2) the [plaintiff] requested accommodations or assistance for his 

or her disability; (3) the [defendant] did not make a good faith effort to assist the 

[plaintiff] in seeking accommodations; and (4) the [plaintiff] could have been reasonably 

accommodated but for the [defendant‟s] lack of good faith.‟” Colwell v. Rite Aid Corp., 

602 F.3d 495, 504 (3d Cir. 2010) (quoting Williams v. Phila. Hous. Auth. Police Dep‟t, 

380 F.3d 751, 772 (3d Cir. 2004)). The District Court rejected Schneider‟s argument that 

the University failed to engage in an interactive process, concluding that
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[t]he undisputed evidence is that the University acted 

promptly to remedy Plaintiff‟s grievances and to 

accommodate her, so that Plaintiff swiftly achieved her 

desired educational goal . . . . After notifying the University 

of her disability on March 31, 2011, Plaintiff waited all of 22 

days before filing suit in this Court — and then has the nerve 

to accuse the University of failing to engage in good faith in 

an interactive process. The evidence shows that the 

University worked to accommodate her needs such that she 

was able to complete her program in June of 2011, but she 

continued to prosecute this action — to what end is unclear. 

App. 16. We agree. The record demonstrates that the University made a good faith 

effort to engage with Schneider after notification of her disability and did, in fact, 

accommodate her. 

C.

Finally, Schneider contests the District Court‟s disposition of her NJLAD claim.

She argues that the District Court should have remanded the NJLAD claim to state court 

once it “dismissed” the ADA claim because, once the federal claim was dismissed, the 

District Court no longer had jurisdiction over the state claim. We review a District 

Court‟s exercise of jurisdiction over state law claims for abuse of discretion. Cf. Kach v. 

Hose, 589 F.3d 626, 634 (3d Cir. 2009) (reviewing decision not to exercise supplemental 

jurisdiction). 

“The decision to retain or decline jurisdiction over state-law claims is 

discretionary.” Id. at 650; see also 28 U.S.C. § 1367(c) (providing that “[t]he district 

courts may decline to exercise supplemental jurisdiction” under certain circumstances 

(emphasis added)); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A 

district court‟s decision whether to exercise . . . jurisdiction [over state-law claims] after 
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dismissing every claim over which it had original jurisdiction is purely discretionary.”) . 

Schneider alleged the same set of facts in support of her ADA and NJLAD claims and 

sought nearly identical relief as to both claims. We conclude that the District Court did 

not abuse its discretion by exercising supplemental jurisdiction over Schneider‟s NJLAD 

claim. 

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.