UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICAH FIALKA-FELDMAN Case Number 08-CV-14922 

 

 Plaintiff, Hon. Patrick J. Duggan 

v. 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacity, JURY DEMAND

 Defendants. 

______________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

Chris E. Davis (P52159) By: Robert A. Boonin (P38172) 

Gabrielle S. Frampton (P59499) 350 S. Main Street, Suite 300 

29200 Vassar Blvd., Suite 200 Ann Arbor, MI 48104 

Livonia, MI 48152 (734) 995-3110 

Phone: (248) 473-2990 Attorneys for Defendant 

Email: cdavis@mpas.org boonin@butzel.com 

Attorney for Plaintiff 

_____________________________________/ 

PLAINTIFF’S SECOND AMENDED COMPLAINT

I. INTRODUCTION 

1. This is an action for declaratory and injunctive relief as well as damages under the 

Fair Housing Act (FHA), 42 U.S.C. §1301 et seq.; the Americans With Disabilities 

Act, Title II 42 U.S.C. §12131 et seq.; and, Section 504 of the Rehabilitation Act of 

1973, 29 U.S.C. § 794(a). 

2. The Plaintiff is a person with a disability who applied to live in Oakland University’s 

on-campus housing. 
3. The application, after initially being approved, was denied. The Defendants’ claimed 

the reason for their action was that the Plaintiff was not “an admitted Oakland

University student.” 

4. Several months later Oakland University changed the reason for denial claiming that 

the reason was the plaintiff was not enrolled in a program leading to a degree. 

5. Because of his disability, Plaintiff cannot enroll in one of the University’s programs

leading to a degree. 

6. Plaintiff is enrolled as a full-time student in the University’s OPTIONS program, 

which does not offer a degree or certificate of completion. 

7. The actions of the Defendants indicate the reasons given for denying the Plaintiff’s

housing application were a pretext for discriminatory actions. 

8. Additionally, if the policy is not a pretext, the policy of the University, that residents 

be matriculating students, has a disparate impact on students with cognitive

impairments who are students of the OPTIONS program because it prohibits them 

from living in on-campus housing. 

9. Plaintiff, through his counsel, requested as a reasonable accommodation that the

policy be waived or modified for him. The request was denied. 

II. JURISDICTION AND VENUE 

10. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 

§ 1331 and 28 U.S.C. § 1343. Plaintiff’s claim for declaratory and injunctive relief

are authorized under 28 U.S.C. § 2201-2202. Damages are allowed pursuant to the 

aforementioned statutes under which this action is brought and under 42 U.S.C. § 

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1983. At all times relevant to this action, Defendants have acted under color of state 

law. 

11. Venue is proper in this U.S. District Court under 28 U.S.C. § 1391(b), because it is 

the district where the Defendant resides and a substantial part of the events or

omissions giving rise to the Plaintiff’s claim arose here. 

III. PARTIES 

12. The Plaintiff, Micah Fialka-Feldman, is a 24-year-old man, from Huntington Woods, 

Oakland County, Michigan. 

13. Micah Fialka-Feldman has a cognitive impairment which substantially limits one or

more major life activities, specifically, but not limited to, learning. 

14. Micah Fialka-Feldman is a student in the OPTIONS program at Oakland University. 

15. The Defendant, OAKLAND UNIVERSITY BOARD OF TRUSTEES, is the 

governing body of Oakland University (OU) located in Rochester, Oakland County, 

Michigan. 

16. The Board’s authority to act is done pursuant to state law, MCL 390.151 et. seq., 

which grants the board full authority to make all decision relevant to this matter. 

17. Defendant Gary D. Russi is Oakland University’s President since 1996 who also has 

decision making authority for the University and is sued here in his official capacity. 

18. Defendant Mary Beth Snyder is Vice President of Student Affairs and Enrollment 

Management at Oakland University. In that capacity, Ms. Snyder is responsible for 

student service programs such as housing. Defendant Snyder is sued in her official 

capacity. 

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19. Defendant Lionel Maten is the Director of University Housing at Oakland University. 

In that capacity he is responsible for the operation of the University’s dormitory and 

apartment facilities including the administration of its policies for student housing 

eligibility and is sued in his official capacity. 

IV. FACTUAL ALLEGATIONS 

20. Mr. Fialka-Feldman began attending classes at OU in the winter term of 2004. 

21. Beginning in the fall term of 2007, OU launched the OPTIONS Program and 

admitted Mr. Fialka-Feldman as a student. 

22. The OPTIONS program is an activity or program of OU. 

23. The OPTIONS program was designed for students with cognitive impairments that

could not be admitted to OU through the regular admissions process. 

24. OU admitted Mr. Fialka-Feldman as a student to the OPTIONS program. The 

OPTIONS program requires each student, among other responsibilities, to take a 

minimum of 12 credit-hours of courses each semester and pay full tuition.

25. Additionally, Mr. Fialka-Feldman as a student at OU participates in numerous school 

activities, the same as do other students admitted to other programs at OU, including: 

attending over 25 courses at the University, member of Alpha Phi Omega fraternity, 

member of Hillel student organization, member of the leadership retreats at OU, Up

Until Dawn, Peace Group, active in the student government election 2008, and Social 

Work Club. 

26. Mr. Fialka-Feldman must take several buses each day from his home in Huntington 

Woods, Michigan, to OU’s campus in Rochester, Michigan. Upon information and 

belief his commute is approximately three hours per day. 

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27. Because of the long commute and because he wanted a complete university 

experience as do other persons his age, Mr. Fialka-Feldman began making inquires 

about living on-campus in the spring of 2006. 

28. Mr. Fialka-Feldman is capable of living on his own in a dormitory setting and if any 

supports are needed, a local agency, MORC, is ready and able to provide assistance. 

29. In the spring of 2007, Micah Fialka-Feldman and his father, Rich Feldman, took a 

pre-arranged tour of the dormitory housing at OU that was arranged and conducted by 

the Director of Housing, Defendant Lionel Maten. As previously stated, Defendant

Maten is responsible for the administration of OU’s policies for student housing 

eligibility. 

30. In the Fall of 2007, Micah Fialka-Feldman applied for on-campus housing in the 

dormitories at OU. 

31. The application, “Contract for Residence Halls Services,” that Micah completed listed 

on the backside the “term and conditions.” The terms and conditions did not contain

a requirement that he be a matriculating student. 

32. On October 6, 2007, Rich Feldman submitted a check for $100.00 to OU for deposit 

on a dormitory room for Micah Fialka-Feldman. 

33. On November 14, 2007, Rich Feldman received e-mail confirming Micah FialkaFeldman was approved and he could begin living in a dorm room on-campus on 

January 6, 2008. 

34. Then, on November 29, 2007, Micah Fialka-Feldman and his family were informed, 

by e-mail, that he was not eligible to live in the dorm. The e-mail was not specific as 

to why he was not eligible. 

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35. On or about November 29, 2007, Micah received a letter from Defendant Maten 

dated, November 28, 2007, which denied his application for housing. The reason 

given by Defendant Maten was “you are not an admitted Oakland University student 

and are not registered for Winter 2008 classes.” 

36. At the time of this letter Micah Fialka-Feldman was a student admitted to Oakland

University and had or intended to register for the Winter classes in 2008. 

37. On December 3, 2007, the $100.00 deposit was refunded to Rich Feldman from the 

student account. 

38. On April 25, 2008, Mr. Fialka-Feldman’s parents paid his tuition for the Winter Term 

2008 to OU. 

39. In March 2008, Oakland University changed its “Contract for Residence Halls

Services.” The back-side of which included the “terms and conditions” which now 

included a requirement that residents be enrolled as matriculating students. 

40. On May 5, 2008, Mr. Fialka-Feldman and his family provided OU officials, 

specifically Defendant Russi, with numerous letters of support, which resulted in a 

meeting being arranged with OU’s Vice President for Student Affairs, Defendant

Mary Beth Snyder. 

41. The meeting took place on May 22, 2008, and Defendant Snyder sent a letter the 

following day, which stated the reason for the denial of his application now was that; 

“The University maintains resident halls for individuals who meet our admissions

requirements and are enrolled in coursework leading to a degree. From time to time

we do house students from other universities who are earning credits for transfer to 

another institution. . .” 

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42. Upon information and belief, OU has provided on-campus housing to students taking 

courses when they are not admitted to degree programs, including but not limited to, 

students in the English-As-A-Second-Language program. 

43. In August 2008, Mr. Fialka-Feldman’s parents met with Defendant Snyder but were 

unable to persuade her to change her mind. 

44. At a meeting of the Board of Trustees on September 17, 2008, Mr. Fialka-Feldman

presented a petition asking the Board to change its decision and allow him to live on 

campus. 

45. The matter, according to the meeting’s minutes, was referred by the Board to the 

administration to consider. 

46. On September 24, 2008, Defendant Snyder sent a letter to Mr. Fialka-Feldman 

informing him that she would not change her decision. 

47. On October 7, 2008, legal counsel for Mr. Fialka-Feldman, Chris E. Davis, contacted 

legal counsel for OU, Victor A. Zimbardi, by letter advising him that it was Plaintiff’s 

belief that OU’s housing policy was discriminatory due to its disparate impact on

persons with disabilities, specifically persons with cognitive impairments. 

48. Additionally, Plaintiff’s counsel requested as a reasonable accommodation that the 

University waive the policy for Mr. Fialka-Feldman because he could not enroll in a 

program leading to a degree due to his disability. 

49. In a letter on November 7, 2008, OU’s legal counsel denied the request for reasonable 

accommodation and denied that the housing eligibility policy was discriminatory. 

50. In a letter dated and faxed on November 14, 2008, Plaintiff’s counsel repeated the 

request for a reasonable accommodation on behalf of Mr. Fialka-Feldman. 

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51. OU’s legal counsel again denied the requested reasonable accommodation by letter 

dated November 17, 2008. 

52. Upon information and belief, Defendant Russi as President of the OU acquiesced, 

condoned or otherwise ratified and/or approved the decisions of Defendants Snyder

and Maten by failing to intervene, alter or reverse the pertinent decisions they made 

in this matter when he had the authority to do so. 

53. Mr. Fialka-Feldman has been extended most or all of the privileges of an OU student 

except housing. 

54. At all pertinent times the Defendants, Oakland Board of Trustees, Russi, Snyder, and 

Maten, were aware that Plaintiff was a person with a handicap/disability. 

V. CAUSES OF ACTION 

COUNT I: VIOLATION OF THE FAIR HOUSING ACT

DISPARATE IMPACT

55. Paragraphs 1 through 54 are incorporated by reference herein. 

56. The dormitory housing at OU is considered a dwelling pursuant to 42 U.S.C. § 

3602(b). 

57. The Plaintiff, Micah Fialka-Feldman, is a person with a handicap (disability) as 

defined in to 42 U.S.C. § 3602(h). 

58. The Plaintiff applied for and is otherwise qualified for on-campus housing at OU. 

59. Plaintiff’s application was rejected and housing remained available after he was 

rejected. 

60. The housing policy of OU, enforced by Russi, Snyder and Maten, which reserves oncampus housing only for those students enrolled in programs leading to a degree, has 

a disparate impact for it caused an adverse effect on persons with handicap, 

8
specifically students with cognitive impairments, by excluding the Plaintiff and his 

fellow students in the OPTIONS program from on-campus housing in violation of 42 

U.S.C. § 3604 (f)(1) and (2). 

61. As a result of Defendants Russi, Snyder and Maten’s actions, Mr. Fialka-Feldman has

suffered significant injury for which there is no adequate remedy at law. 

62. 42 U.S.C. §3613 allows a court to enjoin the discriminatory actions of the

aforementioned defendants. 

63. In all of this, the Defendants, Russi, Snyder and Maten, have under color of state law,

regulation, usage or ordinance, deprived Plaintiff of his rights, privileges or 

immunities secured to him by the Constitution or laws of the United States in

violation of 42 U.S.C. § 1983. 

COUNT II: VIOLATION OF THE FAIR HOUSING ACT

DISPARATE TREATMENT

64. Paragraphs 1 through 63 are incorporated by reference herein. 

65. The dormitory housing at OU is considered a dwelling pursuant to 42 U.S.C. § 

3602(b). 

66. The Plaintiff, Micah Fialka-Feldman, is a person with a handicap (disability) as 

defined in to 42 U.S.C. § 3602(h). 

67. The Plaintiff applied for and is otherwise qualified for on-campus housing at OU. 

68. Plaintiff’s application was rejected and housing remained available after he was 

rejected. 

69. The housing policy of OU, enforced by Russi, Snyder and Maten, which reserves oncampus housing only for those students enrolled in programs leading to a degree, was 

9
a pretext in that it was not the policy of the OU when the Plaintiff was denied housing 

and appears to have been created afterward to justify said Defendants’ actions. 

70. As a result of Defendants Russi, Snyder and Maten’s actions, Mr. Fialka-Feldman has

suffered significant injury for which there is no adequate remedy at law. 

71. 42 U.S.C. §3613 allows a court to enjoin the discriminatory actions of the

aforementioned defendants. 

72. In all of this, the Defendants, Russi, Snyder and Maten, have under color of state law,

regulation, usage or ordinance, deprived Plaintiff of his rights, privileges or 

immunities secured to him by the Constitution or laws of the United States in

violation of 42 U.S.C. § 1983. 

COUNT III: VIOLATION OF SECTION 504 OF THE 

REHABILITATION ACT OF 1973 DISPARATE TREATMENT

73. Paragraphs 1 through 72 are incorporated by reference herein. 

74. OU is a recipient of federal funds. 

75. OU is a college or university and as such all operations of OU are “programs or

activities” covered by Section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794 

(b) (2) (A). 

76. Plaintiff is a person with a handicap (disability) as defined under the Rehabilitation

Act. 

77. Pursuant to the regulations of U.S. Department of Education, Mr. Fialka-Feldman, is 

capable of meeting the necessary requirements to live in a dormitory setting, and is

therefore a qualified handicapped person. 34 C.F.R. § 104.3(l). 

78. The housing policy of OU, enforced by Russi, Snyder, Maten, and Oakland 

University Board of Trustees which reserves on-campus housing only for those 

10
students enrolled in programs leading to a degree, was a pretext in that it was not the 

policy of the OU when the Plaintiff was denied housing and appears to have been

created afterward to justify said Defendants’ actions. 

79. As a result of the actions of all four of the Defendants, Mr. Fialka-Feldman has 

suffered significant emotional distress, embarrassment and humiliation. 

80. 42 U.S.C. § 2000d-7 allows this court to grant all remedies both at law and in equity 

for violation of the aforementioned statute. 

81. In all of this, the Defendants, Russi, Snyder, Maten and Oakland University Board of

Trustees, have under color of state law, regulation, usage or ordinance, deprived 

Plaintiff of his rights, privileges or immunities secured to him by the Constitution or

laws of the United States in violation of 42 U.S.C. § 1983. 

COUNT IV: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 

OF 1973 DENIAL OF REASONABLE ACCOMMODATION

82. Paragraphs 1 through 81 are incorporated by reference herein. 

83. OU is a recipient of federal funds. 

84. OU is a college or university and as such all operations of OU are “programs or

activities” covered by Section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794 

(b) (2) (A). 

85. Plaintiff is a person with a handicap (disability) as defined under the Rehabilitation

Act. 

86. Plaintiff, with or without, reasonable accommodations is otherwise qualified to live in

on-campus housing at OU. 

87. The refusal by the Defendants, Oakland University Board of Trustees, Russi, Snyder, 

and Maten, to waive or modify OU’s housing policy as a reasonable accommodation 

11
denies the Plaintiff the choice of housing by excluding him from participation in, or

being denied the benefits of, or being subjected to discrimination under the housing 

program solely by reason of his handicap. This failure to accommodate is in violation 

of 29 U.S.C. § 794 and 34 CFR 104.45(a).

88. As a result of all four of the Defendants’ actions, Mr. Fialka-Feldman has suffered 

significant emotional distress, embarrassment and humiliation. 

89. 42 U.S.C. § 2000d-7 allows this court to grant all remedies both at law and in equity 

for violation of the aforementioned statute. 

90. In all of this, the Defendants, Oakland University Board of Trustees, Russi, Snyder 

and Maten, have under color of state law, regulation, usage or ordinance, deprived 

Plaintiff of his rights, privileges or immunities secured to him by the Constitution or

laws of the United States in violation of 42 U.S.C. § 1983. 

COUNT V: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT –

TITLE II, DISPARATE TREATMENT

91. Paragraphs 1 through 90 are incorporated by reference herein. 

92. Plaintiff is a person with a disability pursuant to 42 U.S.C. § 12102. 

93. Oakland University Board of Trustees knew or should have known Plaintiff is a 

person with a disability.

94. Oakland University Board of Trustees is a public entity as defined in 42 U.S.C. § 

12131(1). 

95. Plaintiff applied for housing and was unlawfully denied housing, by Defendant 

Oakland University Board of Trustees actions and inaction as described above, 

because of his disability in violation of 42 U.S.C. § 12132. 

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96. The Plaintiff is a qualified individual with a disability, as defined in 42 U.S.C. §

12131 (2), and is otherwise able to participate in the housing program at OU. 

97. As a result of Defendant Oakland University Board of Trustees actions and inaction,

Mr. Fialka-Feldman has suffered significant emotional distress, embarrassment and 

humiliation resulting from this discrimination. 

98. The housing policy of OU, enforced by Oakland University Board of Trustees, which 

reserves on-campus housing only for those students enrolled in programs leading to a 

degree, is a pretext in that it was not the policy of the OU when the Plaintiff was 

denied housing and appears to have been created afterward to justify said Defendant’s

actions. 

99. 42 U.S.C. § 2000d-7 allows a court to enjoin a discriminatory action, and award the 

aggrieved party actual and punitive damages, fees, costs and reasonable attorney fees. 

100. In all of this, the Defendant Oakland University Board of Trustees has under color of 

state law, regulation, usage or ordinance, deprived Plaintiff of his rights, privileges or

immunities secured to him by the Constitution or laws of the United States in

violation of 42 U.S.C. § 1983. 

COUNT VI: VIOLATION OF SECTION 504 OF THE 

REHABILITATION ACT OF 1973 DISPARATE IMPACT

101. Paragraphs 1 through 100 are incorporated by reference herein. 

102. OU is a recipient of federal funds. 

103. OU is a college or university and as such all operations of OU are “programs or

activities” covered by Section 504 of the Rehabilitation Act of 1973. 29 U.S.C. § 794 

(b) (2) (A). 

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104. Plaintiff is a person with a handicap (disability) as defined under the Rehabilitation

Act. 

105. Pursuant to the regulations of U.S. Department of Education, Mr. Fialka-Feldman, is 

capable of meeting the necessary requirements to live in a dormitory setting, and is

therefore a qualified handicapped person. 34 C.F.R. § 104.3(l). 

106. The housing policy of OU, enforced by Oakland University Board of Trustees, Russi, 

Snyder and Maten, which reserves on-campus housing only for those students 

enrolled in programs leading to a degree, has a disparate impact for it caused an

adverse effect on persons with handicap, specifically students with cognitive

impairments, by excluding the Plaintiff and his fellow students in the OPTIONS 

program from on-campus housing in violation of 29 U.S.C. § 794. 

107. As a result of the actions of all four of the Defendants, Mr. Fialka-Feldman has 

suffered significant emotional distress, embarrassment and humiliation. 

108. 42 U.S.C. § 2000d-7 allows this court to grant all remedies both at law and in equity 

for violation of the aforementioned statute. 

109. In all of this, the Defendants, Russi, Snyder, Maten and Oakland University Board of

Trustees, have under color of state law, regulation, usage or ordinance, deprived 

Plaintiff of his rights, privileges or immunities secured to him by the Constitution or

laws of the United States in violation of 42 U.S.C. § 1983. 

VI. JURY DEMAND 

110. Plaintiff hereby requests a trial by jury in this matter. 

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VII. REQUESTED RELIEF

The Plaintiff, Micah Fialka-Feldman, requests this Honorable Court grant the 

following relief:

a. A declaratory judgment that the actions of the Defendants violated the relevant 

sections of the Fair Housing Act and Section 504 of the Rehabilitation Act of 

1973; and 

b. Injunctive relief ordering Defendants to immediately provide on-campus

dormitory housing for the Plaintiff Micah Fialka-Feldman; and 

c. Award compensatory and punitive damages to Plaintiff; and 

d. Attorney fees and costs; and 

e. Any and all other relief deemed equitable and just by this Court. 

 Respectfully submitted, 

Dated: June 19, 2009 s/Chris E. Davis 

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

Attorney for Plaintiff 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

(248) 473-2990 

cdavis@mpas.org

P52159 

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CERTIFICATE OF SERVICE

I hereby certify that on June 19, 2009, I electronically filed the foregoing Second 

Amended Complaint with the Clerk of the Court using the ECF system which will send 

notification of such filing to the following: Robert A. Boonin. 

s/Chris E. Davis

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

248-473-2990 

cdavis@mpas.org

P52159 

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