UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICAH FIALKA-FELDMAN Case Number 08-CV-14922 

 

 Plaintiff, Hon. Patrick J. Duggan 

v. EXPEDITED CONSIDERATION

REQUESTED 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacity, 

 Defendants. 

______________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

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

Veena Rao (P2981) Regan K. Dahle (P53975) 

29200 Vassar Blvd., Suite 200 350 S. Main Street, Suite 300 

Livonia, MI 48152 Ann Arbor, MI 48104 

Phone: (248) 473-2990 (734) 995-3110 

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

Attorneys for Plaintiff Attorneys for Defendant 

_____________________________________/ 

PLAINTIFF’S MOTION FOR SUBSTITUTION OF DEFENDANT, 

SUMMARY JUDGMENT AND PERMANENT INJUNCTION 

 The plaintiff, Micah Fialka-Feldman, by his attorney, Chris E. Davis of Michigan 

Protection and Advocacy Service (MPAS), requests this Honorable Court to issue a declaratory 

judgment and a permanent injunction, pursuant to 28 U.S.C. §§ 2201 and 2202, enforcing his 

rights 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. § 794a. 
For the reasons stated more fully in its attached brief, MPAS now moves for entry of 

summary judgment under Fed. R. Civ. P., Rule 56. Additionally, Plaintiff requests to substitute 

the OU Housing Director as the defendant in this matter pursuant to Fed. R. Civ. P. Rule 25(d). 

Additionally, plaintiff requests expedited consideration of his motion. The winter 

semester starts in January 2010, and this will be the plaintiff’s last semester attending Oakland 

University. Injunction relief will become moot by the end of the semester in May 2010. 

 Respectfully submitted, 

Dated: November 16, 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 

 

2 
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICAH FIALKA-FELDMAN Case Number 08-CV-14922 

 

 Plaintiff, Hon. Patrick J. Duggan 

v. EXPEDITED CONSIDERATION

REQUESTED 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacity, 

 Defendants. 

______________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

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

Veena Rao (P2981) Regan K. Dahle (P53975) 

29200 Vassar Blvd., Suite 200 350 S. Main Street, Suite 300 

Livonia, MI 48152 Ann Arbor, MI 48104 

Phone: (248) 473-2990 (734) 995-3110 

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

Attorneys for Plaintiff Attorneys for Defendant 

_____________________________________/ 

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR SUBSTITUTION OF

DEFENDANT, SUMMARY JUDGMENT AND PERMANENT INJUNCTION 

i 
TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................................... iii 

QUESTIONS PRESENTED............................................................................................................v 

INTRODUCTION ..........................................................................................................................1 

PARTIES ........................................................................................................................................1 

FACTS ............................................................................................................................................2 

ISSUES & ARGUMENT ................................................................................................................7 

 A. Standard for Summary Judgment.........................................................................................7 

 1. The Plaintiff Is Entitled To Summary Judgment When Defendants Denied 

 Plaintiff Housing Due To His Disability According To Their Own Statements 

 And The Proffered Alternative Explanation Is A Mere Pretext. ...............................7 

 2. The Plaintiff Is Entitled To Summary Judgment When The Defendants Denied 

 Him A Reasonable Accommodation After Failing To Do Any Analysis Of His 

 Request And There Is Not Fundamental Alteration Of The Housing Program.......13 

 B. Standard for Issuing a Permanent Injunction ....................................................................18 

 1. Plaintiff Success on the Merits ................................................................................18 

 2. Balancing of the Equities.........................................................................................19 

CONCLUSION..............................................................................................................................19 

ii 
TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986), 106 S.Ct. 2505, 

91 L.Ed.2d 202...............................................................................................................7,13 

Audi AG v. D'Amato, 469 F.3d 534, (6th Cir.Mich.2006)..............................................................18 

Buckingham v. United States, 998 F.2d 735, (9th Cir.1993).........................................................14 

Burns v. City of Columbus, 91 F.3d 836, (6th Cir.1996).................................................................8 

Celotex Corp. v. Catrett, 477 US. 317 ; 106 S.Ct. 2548; 91 L.Ed.2d 265 (1986).....................7, 13 

Copeland v. Machulis, 57 F.3d 476 (6th Cir.1995).........................................................................7 

Cousins v. Bray, 297 F.Supp.2d 1027 (2003)................................................................................18

Dews v. A.B. Dick Co., 231 F.3d 1016 (6th Cir. 2000).................................................................11 

eBay Inc., et al. v. MercExchange, LLC, 547 U.S. 388, 126 S.Ct. 1837, 

164 L.Ed.2d 641 (2006).....................................................................................................18 

Epicenter of Steubenville, Inc. v City of Steubenville, 924 F.Supp 845 (1996) ............................18 

Jones v. City of Monroe, 341 F.3d 474, 477. C.A.6 (Mich.) (2003)................................................8 

Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432 (6th Cir.1998)..............................8 

Knapp v. Northwestern University, 942 F.Supp 1191 (1996)........................................................18 

Larkin v. State of Mich. Dept. of Social Services, 89 F.3d 285 (6th Cir. 1996)...............................8 

McDonnell Douglas v Green, 411 US 792, 36 L Ed 2d 668, 93 S Ct 1817 (1973).....................7, 8 

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453 (6th Cir. 1997....................8 

Oxford House-C v. City of St. Louis, 843 F.Supp. 1556 (E.D.Mo.1994)......................................10 

Regents of Mercersburg College v. Republic Franklin Ins. Co., 458 F.3d 159 

(3rd Cir. 2006).....................................................................................................................13 

Street v. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989)..........................................................7, 13 

iii 
Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, (2nd Cir.2003)..........................................10 

Wong v. Regents of University of California, 192 F.3d , 807(9th Cir. 1999)...........................15, 16 

Zukle v. Regents of University of California, 166 F.3d 1041 (1999).......................................13, 15 

STATUTES AND RULES 

20 U.S.C. § 1040 .............................................................................................................................9 

28 C.F.R. § 35.130.........................................................................................................................13 

29 U.S.C. § 794..........................................................................................................1, 7, 13, 17, 18 

42 U.S.C. §1301...........................................................................................................................1, 7 

42 U.S.C. §12131.........................................................................................................................1, 7 

42 U.S.C. 12133.............................................................................................................................18 

MCL 390.151...................................................................................................................................1 

Fed. R. Civ. P. 25.............................................................................................................................2 

Fed. R. Civ. P. 56.............................................................................................................................7 

Fed. R. Civ. P. 65 ..........................................................................................................................18 

Pub. L. No. 110-315.........................................................................................................................9 

OTHER AUTHORITIES 

99 F.R.D. 465 1984)........................................................................................................................7 

iv 
QUESTIONS PRESENTED 

I. Is The Plaintiff Entitled To Summary Judgment When Defendants Denied Plaintiff 

Housing Due to His Disability According To Their Own Statements And The 

Proffered Alternative Explanation Is A Mere Pretext? 

Plaintiff’s Answer is: Yes 

II. Is The Plaintiff Entitled To Summary Judgment When The Defendants Denied 

Him A Reasonable Accommodation After Failing To Do Any Analysis Of His Request

And There Is Not Fundamental Alteration Of The Housing Program? 

Plaintiff’s answer is: Yes

 

v 
INTRODUCTION

 This case is about Micah Fialka-Feldman, a student in the OPTIONS program at Oakland 

University (OU). The program’s purpose is to provide students with cognitive impairments an 

inclusive age-appropriate, college experience and to better prepare them for employment 

opportunities. Unfortunately, the university did not live up to its promise of a fully inclusive 

environment when it denied the plaintiff’s request to live in on-campus housing. Plaintiff is 

requesting this honorable court grant him summary judgment in this matter. He seeks a 

declaratory judgment, permanent 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. § 794a, for the 

defendants discriminatory actions that denied him housing. 

PARTIES

 Plaintiff Micah Fialka-Feldman is a student at OU located in Rochester, Michigan. 

Micah is a 25 year-old man with cognitive impairments which substantially limit his ability to 

read, write and learn. Exhibit #1. He is currently enrolled in the OPTIONS program at OU and 

has been since the fall, 2007. Exhibit # 2.

 Defendants, Oakland University Board of Trustees, are the governing body of OU. 

Pursuant to state law, MCL 390.151 et. seq., the Board has full authority to make all decisions 

relevant to this matter. 

 Defendant Gary D. Russi is OU’s President and has been since 1996. He also has full 

decision making authority for the matters in this case and is sued here in his official capacity. 

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

Management at OU. In that capacity, Ms. Snyder is responsible for student service programs 
such as housing, the director of which reports to her. Snyder Dep., pp. 5-6. Defendant Snyder is 

sued in her official capacity. 

Defendant Lionel Maten was the Director of University Housing at OU at all times 

relevant to this matter. In that capacity, he was responsible for the operation of the OU’s

dormitory and apartment facilities including the administration of its policies for student housing 

eligibility. He was sued in his official capacity and plaintiff seeks substitution of the current

Director of University Housing to replace him as defendant, pursuant to Fed. R. Civ. P. 25(d). 

FACTS

Beginning in 2003, Micah attended classes at OU as a student in the Transitions program.

This program allows students from Oakland County school districts to attend OU. The 

Rochester Community Schools served as the host school district for the program 2003-2006. 

Fialka-Feldman Dep., p.17. Eventually, Rochester Community Schools decided to restrict the 

program to only students from their own school district. Feldman Dep., pp. 37-38. 

It was at this time that discussions began at OU to create a new program for the inclusion

of students with cognitive and intellectual impairments; the OPTIONS program. Id. These 

discussions were led by Robert Wiggins, Associate Dean in the School of Education and Human 

Services. It was clear from the beginning; this was to be a fully inclusive program that would 

allow its students to experience all aspects of the university, academically and socially, with

access to all of the services offered by the university. Feldman Dep., p.39. Dean Wiggins

developed the OPTIONS Program and wrote to his superiors a proposal for the program. 

Wiggins Dep., pp. 34-43. Exhibits # 3 & 4. His proposal, which clearly alludes to the 

importance of housing, was accepted by the university. Additionally, early drafts of a 

2 
curriculum for the OPTIONS program included classes regarding skills for living in campus 

housing. Exhibit # 5. 

The OPTIONS program is part of the School of Education and Human Services at the 

university. The program brochure described it as follows: “The OPTIONS Program at Oakland 

University is designed to provide a fully inclusive, age appropriate post-secondary education 

experience for students with mild cognitive disabilities. . . OPTIONS is a tuition-based program. 

Students are required to take a minimum of 12 credits per semester. Credits are billed at the

regular OU tuition rate for undergraduate students.” Exhibit # 6. 

In the spring of 2007, at Micah’s Person Centered Planning (PCP) meeting, “housing” 

was discussed as goal of his for the coming year. The OU Housing Director, Lionel Maten, and 

Assoc. Dean Wiggins attended. Micah’s status as a “guest” student in the Transitions program

was identified as an obstacle to university housing. Feldman Dep., pp. 48-49; Maten Dep., pp. 

36- 38. Shortly after the PCP meeting, Micah and his father, Rich Feldman, took a pre-arranged 

tour of the dormitory housing at OU. Maten greeted them at the start of the tour. There were

additional conversations between Mr. Feldman and Mr. Maten regarding the housing situation. 

Feldman Dep., pp 53-59; Maten Dep., pp. 38-43. 

There were also discussions with Assoc. Dean Wiggins about how the students in the 

OPTIONS program could have access to housing as well as the services at OU. The family was 

led to believe that by removing the “guest” status through paying tuition and being issued a 

student identification card and number, the OPTIONS students would be fully enrolled students.

Feldman Dep., pp. 46-47.

In the fall term 2007, Assoc. Dean Wiggins admitted Micah into the OPTIONS Program. 

Wiggins Dep., p. 22. Micah’s parents paid his tuition to OU, which exceeds $10,000 a school 

3 
year. They do not receive assistance from any local, state or federal source to pay his tuition.

Feldman Dep., p. 41; Fialka Dep., p. 52. 

Micah signed his housing application on October 7, 2007, and the form indicates it was

received on November 1, 2007. The application, “Contract for Residence Halls Services,” that 

Micah completed listed on the backside the “Terms and Conditions.” The terms and conditions 

did not contain a requirement that he be a matriculating student. The relevant part of the 

eligibility section stated: “I. ELIGIBILITY: To be eligible for University housing a student must 

be enrolled as a student at the University throughout the entire period of the Contract.” Exhibit # 

7. 

There appears to have been a problem with Micah’s application and his status as a

registered student. But Assoc. Dean Wiggins resolved it along with the secretary in the housing 

department. Exhibit # 8. On November 14, 2007, Rich Feldman received an e-mail confirming 

Micah was approved and he could begin living in a dorm room on-campus on January 6, 2008. 

Exhibit # 9.

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. Exhibit # 10. The e-mail did not specify as 

to why he could not be in the dorms. Later, Micah received a letter from Lionel Maten dated,

November 28, 2007, which denied his application for housing. The reason given by Mr. Maten 

was “you are not an admitted Oakland University student and are not registered for Winter 2008 

classes.” Exhibit # 11. 

At the time of Maten’s letter, Micah was a full-time OU student and was taking classes.

He also intended and did in fact register for classes in the Winter 2008 term. He was in the 

4 
process of completing his registration for Winter 2008. Micah enrolled for and took classes 

during the Winter 2008 semester. 

On December 3, 2007, the $100.00 deposit for housing was refunded to Rich Feldman. 

The check stub indicated it was from a “student” account. Exhibit # 12. 

In March 2008, OU 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. Exhibit # 13.

Micah arranged a meeting with OU’s Vice-President for Student Affairs, Defendant Mary 

Beth Snyder. Fialka-Feldman Dep., pp. 142-144. 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. . .” Exhibit # 14. 

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-SecondLanguage program. Fialka Dep., pp.78-80; Feldman Dep., pp. 92-94. During the Spring 2008, 

OU Professor Sharon Howell, who is a family friend of Micah’s, spoke with Vice President 

Snyder on several occasions about Micah’s housing application. It became clear from these

conversations that Snyder did not believe the OPTIONS program could succeed and that,

because of the affects of their disabilities, OPTIONS students were not capable of living in the 

dorms. Exhibit # 15. 

5 
In August 2008, Mr. Fialka-Feldman’s parents met with Ms. Snyder and Mr. Maten. 

During this meeting Vice-President Snyder clearly indicated that the current application was the

same as the one Micah had signed, which was false, and she was not open to changing her mind. 

Feldman Dep., pp. 96-99; Fialka Dep., pp. 85-89.

At a meeting of the Board of Trustees on September 17, 2008, Micah presented a petition 

asking the Board to change its decision and allow him to live on campus. The Board, according 

to the meeting’s minutes, referred the matter to the administration to re-consider. Exhibit # 16.

However, Vice-President Snyder conducted no further inquiry into the matter other than to verify 

Micah continued to be a non-matriculating student. Snyder Dep., pp. 56-60 and 61-62. In her

opinion, no further inquiry was needed. On September 24, 2008, Vice-President Snyder sent a 

letter to Micah informing him that she would not change her decision. Exhibit #17. 

On October 7, 2008, plaintiff’s counsel sent a letter to legal counsel for OU, Victor A. 

Zambardi, requesting as a reasonable accommodation; specifically, that OU waive the 

“matriculating student” policy for Micah because he could not enroll in a program leading to a

degree due to his disability. Exhibit # 18. 

On November 5, 2008, the Board of Trustees received comments from the public 

regarding the housing situation. Also during this meeting, Vice-President Snyder gave the 

reasons for her decision. Exhibit # 19. One point she made in this statement was Micah’s

reading difficulties were a significant factor in her decision to deny Micah’s housing request. 

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

accommodation. Exhibit # 20. In a letter dated and faxed on November 14, 2008, plaintiff’s 

counsel repeated his request for a reasonable accommodation on behalf Micah. Exhibit # 21. 

6 
OU’s legal counsel again denied the requested reasonable accommodation by letter dated

November 17, 2008. Exhibit # 22. 

ISSUES & ARGUMENT

A. Standard for Summary Judgment

Under Fed. R. Civ. P. 56(c), summary judgment may be granted “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is 

entitled to judgment as a matter of law.” Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995). 

See also, 99 F.R.D. 465, 470 (1984). The moving party must show there is an “absence of a 

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 US. 317, 322-3; 106 S.Ct. 2548; 

91 L.Ed.2d 265. (1986). The respondent must produce some evidence to raise a genuine issue to 

be submitted to the jury. “The respondent must adduce more than a scintilla of evidence to over 

come the motion.” Street v. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989), 1479 citing 

Anderson v. Liberty Lobby, Inc., 106 S.Ct 2505, 2512, 91 L.Ed.2d 202 (1986). 

1. The Plaintiff Is Entitled To Summary Judgment When Defendants Denied 

Plaintiff Housing Due To His Disability According To Their Own Statements And 

The Proffered Alternative Explanation Is A Mere Pretext 

Plaintiff moves for summary judgment, declaratory judgment and permanent injunction 

on Counts II, III, and V of the Second Amended Complaint for disparate treatment 

discrimination claims under the Fair Housing Act, Section 504 of the Rehabilitation Act and the

Americans with Disabilities Act, respectively. 

Under the McDonnell Douglas burden shifting analysis, the plaintiff has the burden of 

proving his prima facie case. If he is successful, the defendant must produce evidence of a 

nondiscriminatory reason for its actions. If the defendant succeeds, the burden shifts back to the 

7 
plaintiff to prove that the proffered explanation is a pretext for the defendants’ discriminatory 

actions. McDonnell Douglas v. Green, 411 US. 792, 802, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). 

“To make out a prima facie case under Title II of the ADA, a plaintiff must establish that (1) she 

has a disability; (2) she is otherwise qualified; and (3) she is being excluded from participation 

in, being denied the benefits of, or being subjected to discrimination under the program solely 

because of her disability.” Jones v. City of Monroe, 341 F.3d 474, 477. (6th Cir.2003). relying on 

Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 435 (6th Cir.1998); and also

Burns v. City of Columbus, 91 F.3d 836, 841 (6th Cir.1996) (setting forth the prima facie case 

under the Rehabilitation Act) The prima facie case for disparate treatment claims under each 

statute is the same. Jones at 477. citing, McPherson v. Michigan High Sch. Athletic Ass'n, Inc.,

119 F.3d 453, 459-460 (6th Cir.1997). Under the Fair Housing Act, plaintiff must show the 

defendants were motivated by intent to discriminate against disabled individual. Larkin v. State 

of Mich. Dept. of Social Services, 89 F.3d 285, 289 (6th Cir.1996). 

There is no issue of fact that Micah is an individual with a disability. Exhibits 1, 23 & 

24. OU admitted him into a program for persons who are cognitively impaired and that have 

learning disabilities. Defendants’ Answer to Second Amended Complaint, Docket Item # 31. 

Otherwise Qualified: Micah was qualified and eligible for housing as an enrolled 

student at OU in the OPTIONS program, pursuant to the eligibility standard at the time he signed 

his application. Micah has all the attributes of a university student. He participates in class 

discussions and frequently asks questions. He participates in group class projects and studies 

after class with fellow students. Micah works with peer tutors to help with note taking. He does 

not receive grades but he takes quizzes and tests. Exhibits # 15, 25 & 26. Fialka-Feldman Dep.,

pp. 98-99. He is enrolled for a minimum of 12 credits and has taken up to 15 credits during a 

8 
semester. He paid tuition at the same rate as all other students enrolled in a program leading to a 

degree. This is all in addition to Micah’s deep involvement in the campus life of OU.1

 

Additionally, the defendants’ have admitted that Micah is a student on numerous 

occasions. Micah was issued a student identification card once he was in the OPTIONS 

program. Exhibit # 27. The university’s brochure, which Micah appears in, describes the 

participants in the program as “students.” Exhibit # 6. In the Defendants’ answer to the Second 

Amended Complaint, they admit Micah is enrolled in the OPTIONS program and it is a program 

of OU. Answer Docket Item #31. Finally, Wiggins even refers to Micah as a “registered 

student” in his e-mail to MORC. Exhibit # 8. It is clear that in their minds they considered and

acknowledged that Micah is an enrolled student. 

It’s also clear that under a recently passed federal law Higher Education Opportunities

Act2

, which for the first time makes financial aid available to college students with intellectual 

and cognitive disabilities, the federal government considers the participants in programs like

OPTIONS to be students. The definition section of the act is codified at 20 U.S.C. § 1040. 

The foregoing facts demonstrate clearly that Mr. Maten’s letter rejecting Micah’s

application because he was not “an admitted Oakland University Student” is factually wrong. 

Additionally, Maten even admits in deposition that an “enrolled student” could be someone

taking as little as one class. Maten Dep., pp. 21-28. A requirement Micah met. In fact, as

member of the OPTIONS program he was required to take 12 credits. 

 

1

 As mentioned in previous motions to the court, Micah participates in numerous school activities, 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, Social 

Work Club (formerly) and Sociology Club. Exhibits #2, 15, 25 & 26. Fialka-Feldman Dep., pp. 104-112.

2

 Pub. L. No. 110-315, signed August 14, 2008

9 
Furthermore, Micah is able to live independently in the dorms at OU and does not require 

any supports to do so according to an “Independent Living Assessment” conducted by Disability 

Network Oakland & Macomb. Exhibit # 28. 

Denied Housing Because Of His Disability: The plaintiff must prove that a motivating

factor behind the defendant’s actions was his disability. Tsombanidis v. West Haven Fire Dept., 

352 F.3d 565. (2nd Cir. 2003). One way a plaintiff can show this is by evidence that shows the 

defendants decisions are motivated by “stereotypes, unfounded fears, misperceptions and archaic 

attitudes as well as simple prejudice” concerning persons with disabilities. Oxford House-C v. 

City of St. Louis, 843 F.Supp. 1556 (E.D.Mo.1994), reversed 77 F.3d 249, certiorari denied 117 

S.Ct. 65, 519 U.S. 816, 136 L.Ed.2d 27. 

Micah was denied housing he was otherwise qualified for due to his disability. 

Ultimately, the decision to deny Micah’s admission was made by Vice-President Snyder. In her 

statement to the Board of Trustees on November 5, 2008, she made clear that the effects of

Micah’s disability were the basis for her decision. Exhibit # 19. She repeated these statements 

in her deposition. Snyder Dep., pp. 23-24. More disturbing are the statements she made to 

Professor Howell. In these conversations, Vice President Snyder clearly demonstrates a bias in 

regard to the OPTIONS program and was paternalistic in her comments about admitting Micah 

into the dorms. Exhibit # 15. 

The above statements show the reason she denied Micah’s request to live in the dorms

was her perceptions that Micah’s reading difficulty would prevent him from understanding the 

rules and requirements of living in a dorm. Her perceptions have no basis in fact. Additionally, 

her misperceptions lead to her conclusion that OPTIONS students would increase responsibilities 

for staff. Micah is capable of understanding his responsibilities in spite of his reading 

10 
difficulties. As for the other OPTIONS students, Ms. Snyder is merely speculating about 

“increased responsibilities” for staff. She did no analysis of the actual facts of the matter by her 

own admission. Snyder Dep., pp. 61-62. This is a perfect example of someone basing their 

decision on “misperceptions and archaic attitudes” toward persons with disabilities. 

The Explanation Given Is A Pretext: Defendants counter by proffering what appears 

to be a nondiscriminatory reason for their decision. Namely, that it’s their practice and

procedure that enrolled students means undergraduate students enrolled in a degree-granting 

program. Snyder Dep., pp. 49-52. A plaintiff can prove the proffered reason is a pretext, "by 

showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the

defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Dews

v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000).3

The defendants’ explanation has no basis in fact, beginning with the fact that they have 

changed the explanation numerous times. As explained above, the statement in Maten’s letter of 

November 28, 2007, that Micah was not an enrolled student, was factually wrong. Additionally, 

his letter made no mention of matriculating student. See, otherwise qualified discussion. Supra. 

The defendants then claimed Micah was not a matriculating student. The problem with 

this explanation is that the housing application form Micah signed did not contain a matriculating 

student requirement as a condition of eligibility. Exhibit # 7. OU then changed the application in

March 2008, and claimed this was always their policy, including when Micah’s parents met with 

V.P. Snyder and Maten in August 2008. Feldman Dep., pp. 96-99; Fialka Dep., pp. 85-89. OU

claimed that the change in the form was merely an update of the form to have it reflect how they 

 

3 Dews was a Title VII, employment racial discrimination case. However, the methods for proving pretext would 

still be relevant to our case. 

11 
have always interpreted the form. Both Snyder and Maten have admitted there are no policies or 

procedures that reflect how the form was previously interpreted. In addition, an experienced 

housing department secretary, after thoroughly reviewing Micah’s application and consulting

with Assoc. Dean Wiggins, sent an e-mail to the family stating the application was approved and 

Micah was set to go on January 6, 2008. Exhibits # 8 & 9. Furthermore if this was their policy, 

then there was no reason for Maten, the Director of Housing, to consult with Snyder before 

denying Micah’s application. Maten Dep., pp. 46-48. 

 Finally, defendants explain Roxanne’s e-mail as a misunderstanding. They claim when 

she processed the application, she entered Micah’s student ID# and it came up so she approved 

him. Defendants claim that in the past this would not have happened. But this was the first 

semester of the OPTIONS program and before this the students in the Transition Program did not 

receive a student ID number. Maten Dep., pp. 57-58. 

There are two problems with this explanation. First, the fact the university issued Micah 

a student identification card is an admission on their part that they now considered Micah and the

other OPTIONS students to be enrolled students at OU. Secondly, the e-mail from Assoc. Dean 

Wiggins to Kim Dombrowsky, at MORC, proves that OU’s initial approval of Micah’s 

application was not a simple mistake that slipped through. The secretary did not just approve the 

application because it had a student ID number on it as they claim. Assoc. Dean Wiggin’s e-mail 

clearly states there was a “problem” with Micah’s application and that he had conversations with 

the secretary, Roxanne, about the problem. He further stated in the e-mail, the problem was now 

resolved and they, the housing people, now understood Micah was a “registered student” and 

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there only remained a billing issue to be worked out.4

 Far from being an error on the part of the 

housing department, it was an informed decision approving Micah’s housing application. It was 

overturned later for discriminatory reasons. 

The defendants have no documentation to support their many explanations. In contrast, 

plaintiff has numerous e-mails supporting our position, along with Maten’s letter and the 

changed application forms. Under the Celotex-Bradford-Anderson line of cases, to have a 

material issue of fact in dispute requires the defendants to produce more than their carying 

explanations for why they denied an otherwise qualified individual access to housing. They have 

failed to produce anything and plaintiff is therefore entitled to summary judgment on this issue. 

2. The Plaintiff Is Entitled To Summary Judgment When The Defendants 

Denied Him A Reasonable Accommodation After Failing To Do Any Analysis Of 

His Request And There Is Not Fundamental Alteration Of The Housing Program

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 College v. Republic Franklin Ins. 

Co., 458 F.3d 159, 168 (3rd Cir. 2006). Under Section 504 of Rehabilitation Act of 1973, 29 

U.S.C. § 794a, a public entity must “make reasonable modifications in policies, practices, or 

procedures when the modifications are necessary to avoid discrimination on the basis of 

disability.” Zukle v. Regents of University of California, 166 F.3d 1041, 1046 (1999)(quoting 28 

C.F.R. § 35.130(b)(7)). “Mere speculation that a suggested accommodation is not feasible” falls 

short of the “reasonable accommodation” requirement; the Acts create “a duty to ‘gather 

sufficient information from the [disabled individual] and qualified experts as needed to 

 

4

 “I have been following up on this and spoke with Roxanne today. Micah's application has been accepted and is

being processed. I straightened out the question of enrolled credits. They were looking at Total Credits and did not

notice the entry under total CEUs. They now know that Micah is a registered student and it is a separate issue from

the billing issue (which I am also pursuing). We do need to make sure Micah is registered for a winter class before 

January but that will be no problem.” Exhibit # 8.

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determine what accommodations are necessary to enable [the individual to meet the standards in

question].’ ” Buckingham v. United States, 998 F.2d 735, 740 (9th Cir.1993). 

In the case at bar, Defendant Snyder advised Micah, in a letter dated May 23, 2008, that 

he was not eligible for housing since he was not an individual who met “admissions 

requirements” and was not “enrolled in coursework leading to a degree. Exhibit # 14. He 

received another letter from Defendant Snyder, dated September 24, 2008, wherein she informed

him that her decision to deny him access to housing was “based on university housing eligibility 

criteria.” Exhibit # 17. In a letter to university officials, Micah advised OU that due to his

cognitive impairment he could not “enroll in a program or coursework leading toward a degree.” 

Exhibit # 18. He then requested an accommodation from the “degree” seeking requirement so 

that he could be eligible for housing. Other than the “matriculating” student requirement, Micah 

met all the other requirements to be eligible for on-campus housing at OU. He was registered for 

and paid tuition for 12 to 15 credit hours. Exhibit # 2. OU requires twelve credit hours to be 

considered a full-time student and it is a requirement of the OPTIONS program as well. Exhibit 

# 6. The tuition rate for the OPTIONS program is the same as the tuition rate for students

enrolled in a degree seeking program. Exhibit # 6. In denying his request for a reasonable 

accommodation, OU stated that “residency will not enable your client to be regularly admitted 

and enroll in coursework leading to a degree, nor is it necessary for his participation in the

OPTIONS program.” Exhibit # 20. On November 14, 2008, another letter was sent to OU 

stating that the reasonable accommodation being sought was waiver of the OU housing rule, 

“that only students enrolled in coursework leading to a degree” are eligible for on-campus 

housing. Exhibit # 21. On November 17, 2008, Oakland responded that it did not intend to grant 

any accommodation to Micah. Exhibit # 22.

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The issue of the “reasonableness” of an accommodation request, depends on the 

individual circumstances of each case. The determination requires a “fact-specific, individualized

analysis of the disabled individual's circumstances and the accommodations that might allow him 

to meet the program's standards.” Wong v. Regents of University of California, 192 F.3d 807, 

818 (9th Cir. 1999). 

The plaintiff bears the “initial burden of producing evidence” both that a reasonable 

accommodation exists and that this accommodation would enable the plaintiff to “meet the

essential eligibility requirements.” Zukle, 166 F.3d at 1047. Production of such evidence shifts 

the burden to the defendant to produce rebuttal evidence that either (1) the suggested 

accommodation is not reasonable (because it would substantially alter the program), or (2) that 

the plaintiff is not qualified (because even with the accommodation, the plaintiff could not meet

the eligibility standards). See Id. 

In Wong, the Court noted that the University failed to present a record undisputedly 

showing that the Dean who refused to grant the plaintiff’s request for an accommodation actually

investigated the proposed accommodation to determine whether the School of Medicine feasibly 

could implement the accommodation being requested (or some alternative modification) without 

substantially altering the University's academic standards. Wong, 192 F.3d at 818 -819. The

Court noted that factors such as the Dean not having responsibility for assessing appropriate 

accommodations, the fact that he simply passed messages to plaintiff through the registrar’s 

office denying plaintiff's request without consulting plaintiff or any person at the University

whose job it was to formulate appropriate accommodations lead it to conclude that there was a

“conspicuous failure to carry out the obligation “conscientiously” to explore possible 

accommodations”. Wong, 192 F.3d at 819. The Wong court found that none of the reasons 

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proffered by the University for denying the plaintiff accommodations were “relevant to the

School of Medicine's curriculum or standards.” The Court noted that “only in a declaration dated 

two months after this deposition did Dean Lewis assert that he denied the requested 

accommodation because it was “contrary to the purposes of the curriculum” and stated that an

after-the-fact justification obviously does not satisfy the University's obligation to show that it 

conscientiously considered whether possible modification would fundamentally or substantially

alter the school's standards when it decided that it could not reasonably accommodate the 

disabled student. Id. at 819. 

In response to Micah’s request for an accommodation from the “enrolled in a program or

coursework leading to a degree” requirement, OU’s only response was that he was not enrolled

in a degree-seeking program. They did not proffer any other reasons for denying him an 

accommodation that would have allowed him to reside in on-campus housing. OU claimed that

it would fundamentally alter the OPTIONS program. They did not review the accommodation 

request to see if the accommodation was reasonable in the context of the housing program. OU 

has never claimed that Micah was not eligible for housing in any other aspect of the program. 

Unlike the Wong case, the accommodation being sought is not an accommodation from an 

academic program or course-work of OU where OU is entitled to deference about its decision to 

deny Micah an accommodation. Rather, the accommodation being sought is an accommodation 

from a requirement, which would allow Micah to participate in the residential housing program. 

The only requirement of the housing program he cannot meet is that he cannot be admitted to a 

degree-seeking program at the university given the nature of his disability. Micah is enrolled in 

12 to 15 credits per semester at OU in the OPTIONS program. He pays tuition at the same rate as

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peers enrolled in a degree program at OU. He attends and participates in classes at OU. He 

intends to pay the full cost of living in on-campus housing. 

OU promotes the residential life program as an important part of the educational 

experience: “Living on campus is the best way to fully experience college life. The on-campus 

experience offers students convenience, a sense of community, lasting friendships and many 

opportunities for involvement in student life.”5 “Residential students live, eat, study, and

socialize together in residence halls allowing them to have greater opportunities to make friends

and to become socially integrated into the campus community. When you make the campus your 

home, you’ll make the most of your college experience.”6

 By establishing and maintaining a 

residential life program as part of its educational mission, OU has an obligation to provide this 

program to people with disabilities on a nondiscriminatory basis. Student housing, like all aspects 

of the educational experience, is encompassed in the place of public accommodation. 

On-campus housing facilities such as dormitories, which are an integral part of the

university experience, are certainly part of the “goods, services, facilities, privileges, advantages, 

and accommodations” offered by schools to its students. OU is required to provide such 

activities in a non-discriminatory manner. 29 U.S.C. § 794a. Despite this, Vice President Snyder 

and Director Maten conducted no analysis of weather the requested accommodation was 

feasible. Maten Dep., pp. 59-62; Snyder Dep., pp. 56-59 and 61-62. 

Oakland has failed to meet its burden of showing that the accommodation being sought, 

waiver of the degree seeking requirement, would fundamentally alter the housing program at 

 

5 http://www.oakland.edu/housing/ Exhibit # 29 6 http://www.oakland.edu/?id=7278&sid=3. Exhibit #30

17 
Oakland or that even if the accommodation was granted, Micah is not eligible to reside in oncampus housing. Plaintiff is entitled to summary judgment as a matter of law. 

B. Standard for Issuing a Permanent Injunction

Pursuant to Fed. R. Civ. P. 65(d), a plaintiff seeking a permanent injunction must 

demonstrate that it has suffered irreparable injury, there is no adequate remedy at law, “that, 

considering the balance of hardships between the plaintiff and defendant, a remedy in equity is 

warranted,” and that it is in the public's interest to issue the injunction. Audi AG v. D'Amato, 469 

F.3d 534, 550 (6th Cir.Mich.2006) citing, eBay Inc., et al. v. MercExchange, LLC, 547 U.S. 388, 

126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). Additionally, the movant must actually succeed 

on the merits of its claim and cannot rest, as it may when seeking a preliminary injunction, on a

mere showing of a likelihood of success. 

Each of the statutes plaintiff has sued under allows for injunctive relief. Under the Fair 

Housing Act, See, Cousins v. Bray, 297 F.Supp.2d 1027, 1041 (2003) (Plaintiffs entitled to 

presumption of irreparable harm. This was a race discrimination case.), and Epicenter of 

Steubenville, Inc. v City of Steubenville, 924 F.Supp 845, 852 (1996) (Granting injunction even 

though plaintiff would not suffer irreparable harm but handicap community would.). The ADA,

Title II allows for injunctive relief under 42 U.S.C. § 12133. Section 504 allows for injunctive

relief under 29 U.S.C. § 794a, see also Knapp v. Northwestern University, 942 F.Supp 1191, 

1198-1199, (1996) (Court found that denying plaintiff participation on basketball team to be 

irreparable harm.) 

1. Plaintiff Success on the Merits. The merits of the plaintiff’s claims were discussed in 

the preceding sections and for brevity will not be repeated. Should the court find plaintiff has 

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succeeded on any of its claims, this would obviously satisfy this requirement for granting a 

permanent injunction. 

2. Balancing of the Equities. Being denied equal access on the account of one’s disability

is itself an irreparable harm. It is essentially a statement by the defendant to plaintiff that you are 

a second class citizen in our society. This is the main reason why an injunction is an appropriate 

remedy to address a continuing violation of the plaintiff’s civil rights. Additionally, Micah

would be denied his only opportunity to live in a dorm at his college and he would have to 

continue taking buses to school and looking for rides from friends to get home. OU claims if the 

injunction was issued they may be forced to build additional housing. This statement makes no 

sense when the total number of participants in the OPTIONS program is nine and only Micah has 

even expressed interest in living on campus. Defendants also admitted that during part of the 

school year, they have unused dorm space. Snyder Dep., pp. 43-44. Finally, all three statutes in

this case are statement by the U.S. Congress that it is in public’s interest to see an end to 

discrimination based on a persons disability and a desire by Congress for more inclusive society. 

CONCLUSION

Plaintiff requests this honorable Court consider this motion on an expedited basis due to 

the new semester starting in January 2010; substitute the current housing director in as a 

defendant, grant plaintiff summary judgment, declaratory relief and damages; and, issue an 

injunction enjoining the defendants to admit, rent to, and otherwise make available to the

Plaintiff, and others similarly situated, a space in one of its on-campus dormitory living spaces. 

Plaintiff further requests any additional relief the Court deems just and appropriate, and equitable 

under the circumstances. 

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Respectfully submitted, 

Dated: November 16, 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 

 

CERTIFICATE OF SERVICE

I hereby certify that on November 16, 2009, I electronically filed the foregoing Plaintiff’s 

Motion for and Brief in Support of Substitution of Defendant, Summary Judgment and 

Permanent Injunction 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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