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, 

 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 RESPONSE TO DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT 

The Plaintiff, Micah Fialka-Feldman, through his counsel, requests the Court deny 

Defendants’ Motion for Summary Judgment for the reasons given below and those reasons more 

fully described in the attached brief in support. 

Defendants' Motion for Summary Judgment fails to meet the requirements of Fed. R. Civ. 

P 56 and the case law interpreting it, Celotex Corp. v. Catrett, 477 US. 317, 322-3; 106 S.Ct. 

2548; 91 L.Ed.2d 265. (1986); Anderson v. Liberty Lobby, Inc., 106 S.Ct 2505, 2512, 91 L.Ed.2d 
202 (1986), as to Plaintiff's reasonable accommodation and disparate treatment claims. Plaintiff 

therefore respectfully requests the Defendants' motion be denied. 

Plaintiff concedes that Summary Judgment would be appropriate on its disparate impact 

claims. 

 Respectfully submitted, 

Dated: December 3, 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. 

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 RESPONSE TO DEFENDANTS’ 

 MOTION FOR SUMMARY JUDGMENT 
TABLE OF CONTENTS

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

QUESTIONS PRESENTED.......................................................................................................... iv

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

PARTIES AND FACTS ..................................................................................................................1 

ISSUES & ARGUMENT ................................................................................................................1 

A. Standard for Summary Judgment..............................................................................1 

B. Plaintiff’s Reasonable Accommodation Request.....................................................1 

1. Defendants’ Failure to Conduct any Analysis of the Accommodation 

Requested by Plaintiff Precludes Dismissal of Plaintiff’s Claim. 

Furthermore, Plaintiff is entitled to Summary Judgment on This 

Claim............................................................................................................1 

2. The Court Should Conduct An “Individualized Inquiry” Into The 

Reasonableness Of An Accommodation Requested, In The Present Case 

doing so Demonstrates there is No Fundamental Alteration or Undue 

Burden..........................................................................................................4 

C. The Plaintiff’s Disparate Treatment Claims............................................................9 

1. Plaintiff Was An Enrolled Student At OU At The Time He Applied For 

Housing And Was “Otherwise Qualified” For The Housing 

Program........................................................................................................9 

2. Defendants Changed The Housing Contract Creating The Matriculating

Student Requirement In 2008 After Denying Plaintiff’s Application And 

To Justify Their Actions............................................................................10 

3. Defendant Snyder’s Numerous Statements Are Proof Of Her 

Misperceptions And Paternalistic Attitude Toward Persons With 

Disabilities And Her Discriminatory Intent...............................................11 

CONCLUSION..............................................................................................................................12 

ii 
TABLE OF AUTHORITIES

CASES

Cruz v. Pennsylvania Interscholastic Athletic Association, 157 F.Supp.2d 485, 498 

 E.D.Pen. 2001)........................................................................................................ 6 

Jones v. City of Monroe, 341 F.3d 474 (6thCir. 2003)........................................................6 

McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453 

(6th Cir.1997)...................................................................................................2, 5, 6 

PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001)............6 

School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 

94 L.Ed.2d 307 (1987)..............................................................................................6 

Southeastern Community College v. Davis, 442 US 397, 409, 99 S.Ct. 2361, 

60 L.Ed.2d 980 (1979).....................................................................................2, 5, 6 

Wong v. Regents of University of California, 192 F.3d 807 (9th Cir. 1999).......................2 

iii 
QUESTIONS PRESENTED 

I. WHETHER THE DEFENDANTS’ FAILURE TO CONDUCT ANY ANALYSIS OF 

THE ACCOMMODATION REQUESTED BY PLAINTIFF PRECLUDES DISMISSAL 

OF PLAINTIFF’S CLAIM?

 Plaintiff’s Answer: Yes 

II. WHETHER THE COURT SHOULD CONDUCT AN “INDIVIDUALIZED INQUIRY 

INTO” THE REASONABLENESS OF AN ACCOMMODATION REQUESTED?

Plaintiff’s Answer: Yes 

III. WHETHER PLAINTIFF WAS AN ENROLLED STUDENT AT OU AT THE TIME HE 

APPLIED FOR HOUSING AND WAS “OTHERWISE QUALIFIED” FOR THE

HOUSING PROGRAM?

Plaintiff’s Answer: Yes 

IV. WHETHER DEFENDANTS CHANGED THE HOUSING CONTRACT CREATING 

THE MATRICULATING STUDENT REQUIREMENT IN 2008 AFTER DENYING 

PLAINTIFF’S APPLICATION AND TO JUSTIFY THEIR ACTIONS. 

Plaintiff’s Answer: Yes 

V. WHETHER DEFENDANT SNYDER’S NUMEROUS STATEMENTS ARE PROOF

OF HER MISPERCEPTIONS AND PATERNALISTIC ATTITUDE TOWARD

PERSONS WITH DISABILITIES AND HER DISCRIMINATORY INTENT. 

Plaintiff’s Answer: Yes 

iv 
INTRODUCTION

 The Defendants are not entitled to summary judgment on the reasonable accommodation 

nor the disparate treatment claims as set forth below. Defendants’ motion lacks merit both in 

law and in fact and Plaintiff requests that it be denied. Additionally, Plaintiff requests the court 

to grant him summary judgment as explained in detail in his motion. Docket Item # 39. 

PARTIES AND FACTS

 Plaintiff Micah Fialka-Feldman, relies upon the statement of Parties and Facts sections 

contained in his brief in support of his Motion for Substitution of Defendant, Summary Judgment 

& Permanent Injunction, Docket Item #39, pp. 1-7. 

ISSUES & ARGUMENT

A. Standard for Summary Judgment

Plaintiff Micah Fialka-Feldman, relies upon the statement of Standard for Summary 

Judgment section contained in his brief in support of his Motion for Substitution of Defendant, 

Summary Judgment & Permanent Injunction, Docket Item #39, p. 7. 

B. Plaintiff’s Reasonable Accommodation Request

 1. Defendants’ Failure to Conduct any Analysis of the Accommodation 

Requested by Plaintiff Precludes Dismissal of Plaintiff’s Claim. Furthermore, Plaintiff is 

entitled to Summary Judgment on This Claim. 

 The Plaintiff, Micah Fialka-Feldman, meets the “necessary” requirements to live in the 

on-campus dorms at Oakland University (OU). The only requirement he does not meet is that of 
being a matriculating student.1

 Micah requested this requirement be waived for him as a 

reasonable accommodation due to his disability. He could not meet the requirement due to his 

cognitive impairment. His requests however were denied. Exhibits # 14, 17, 20 and 22.2

The Rehabilitation Act, requires recipients of federal funds, like OU, to make reasonable 

accommodations for persons with disabilities concerning procedures, policies and requirements 

of the university. Southeastern Community College v. Davis, 442 US 397, 409-411, 99 S. Ct. 

2361, 60 L.Ed.2d 980 (1979). This includes waiving and altering perquisites that are not 

essential or otherwise do not fundamentally alter the nature of the program. McPherson v. 

Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 461 (6th Cir.1997). 

When determining whether an accommodation request is reasonable a recipient is 

required to make an informed inquiry into the reasonableness of the accommodation requested 

not merely rely on preconceived notions or conclusions. Wong v. Regents of University of 

California, 192 F.3d 807, 818-819 (9th Cir. 1999). For brevity Plaintiff will not repeat all of the 

arguments in Plaintiff’s motion but instead incorporates them by reference and directs the court’s 

attention to that brief as grounds for rejecting Defendants’ motion. See Plaintiff’s Motion for 

Substitution of Defendant, Summary Judgment & Permanent Injunction, Docket Item #39, pp.13-

17. However, Plaintiff would point out that Vice-President, Snyder and former Housing 

Director, Maten testified they made no inquiry into the feasibility of the requested 

accommodation. Ms. Snyder in her deposition stated: 

 

1

 Plaintiff for this section of the argument is assuming the court has found or may find the “matriculating student” 

rule is not pretext for the Defendants’ otherwise discriminatory behavior. Plaintiff is NOT conceding this point in

general but only for this section of the argument. Plaintiff will argue the rule is pretext in the next section of his 

argument. 

2

 New exhibits for this Brief will be marked by a Letter (A, B, C ... etc.) but when referring to an exhibit previously 

used in Plaintiff’s Motion for Summary Judgment it will be referenced by the exhibit number used in that brief. 

2 
Q. What was entailed in the review that you did?

A. The review was to ascertain whether or not his status in any way had 

changed with the university. Whether he had applied to the university, 

whether he was enrolled in a degree program at that point. And no, did I 

consult with anyone, I probably talked to someone in the registers office to 

ascertain whether or not any change had occurred. 

Q. Other than reviewing his student status, did you do any other review?

A. No, I didn’t. 

Snyder Dep. p. 60. 

Even when Vice –President Snyder was questioned by her own counsel, Mr. Boonin, she

insisted she had done no analysis. 

BY MR. BOONIN: 

Q. Ms. Snyder, you testified that, about certain types of burdens that would 

exist if you were to allow nonmatriculated students into the dorms. I 

believe you said something that there could be space burdens, there could 

be financial burdens, there could be administrative burdens? 

A. I did. 

Q. Did you, are those all of the types of burdens?

A. I can’t say that those are all the types of burdens. I never did an analysis 

of the burdens because these OPTIONS people weren’t students. I was 

never asked to do a full analysis. 

Q. And do you, never mind. 

Snyder Dep., pp. 61-62 

Mr. Maten also testified that he made no further inquiry other than to check whether 

Micah was in a degree granting program. The testimony of Mr. Maten and Ms. Snyder clearly 

demonstrates they had made up their minds and would not consider, make any inquiry or do any 

analysis as to whether Micah’s accommodation request was reasonable. Mr. Maten stated: 

Q. You didn’t make any inquiry into what that would look like, or you just 

pretty much said, that’s the policy, it’s not changing, I’m not making any 

further inquiry into it?

A. I think we discussed earlier as to how that process occurred with Mary 

Beth and, you know, my question going to Mary Beth, and that’s the 

process that I followed and that was the extent of the process. 

Q. Did you ever talk with anybody from disability support services in that 

department at all about this?

A. Yes. 

3 
Q. Who did you talk with here?

A. Linda Sisson. 

Q. And what did you discuss with Linda?

A. That meeting, whether or not, whether or not Micah met the enrollment, 

met the enrollment guidelines or policies and procedures and process to be 

a matriculated student at the university. 

Q. But did you discuss at all waiving that policy with her as an 

accommodation of a disability or anything of that nature? 

A. To the best of my knowledge at this current time I do not remember. 

Maten Dep., p. 62. 

The Defendants never considered nor did they conduct any analysis regarding the 

Plaintiff’s reasonable accommodation request. The only thing they did was to look at whether or 

not he was a matriculating student. They failed to evaluate the actual accommodation request. 

Rather they just kept repeating he is not a matriculating student. Given their failure to conduct an 

informed inquiry into the request by Micah, Defendants’ motion for summary judgment should 

be denied. 

2. The Court Should Conduct An “Individualized Inquiry” Into The

Reasonableness Of An Accommodation Requested, In The Present Case doing so

Demonstrates there is No Fundamental Alteration or Undue Burden. 

 

The Defendants did not conduct an analysis of Micah’s accommodation request at the 

point when they denied it. None of the denial letters discuss fundamental changes in the housing 

program, only that Micah is not a matriculating student. Exhibits # 14, 17, 20 and 22. Any 

reasons Defendants proffer regarding a fundamental alteration of the program have emerged only 

after this lawsuit was filed. Without conceding this point, Plaintiff will address the reasons now

being proffered by Defendants and show that they fail and that Defendants violated the 

Rehabilitation Act. 

4 
The Defendants now argue that allowing the continuing education students into the 

housing program at OU would fundamentally alter the program and rely upon the McPherson

case for their argument.3 Defendants’ Brief in Support of Their Motion for Summary Judgment, 

Docket Item # 37, pp. 14, 16. The McPherson case should be limited to the unique set of facts in 

that case, i.e. competitive sports program, risk of injury to others, burden of doing extremely 

detailed analysis and evaluation of every individual applying for the waiver. In fact, the Court in

McPherson was very concerned about the potential for injuries to others, a factor which is 

entirely absent in the present case. Another factual distinction is that Micah only seeks his place 

in line for available housing. He did not ask to take someone else’s place in a dorm, unlike in 

McPherson which involved a competition sports program. Also, in McPherson the Court was

faced with the situation of hundreds if not thousands of people applying for waivers. In our case 

there are only nine students in the OPTIONS program. The Court in McPherson also noted

there was no suggestion of discrimination animus in the creation of the rule, unlike our case.

McPherson at 14-15. (See pretext argument, supra.) Expanding McPherson beyond its unique 

set of facts would fundamentally change how the Rehabilitation Act of 1973 has been applied by 

the Supreme Court of the United States and the Sixth Circuit Court of Appeals. 

The case of Southeastern Community College v. Davis, 442 US 397, 99 S.Ct. 2361, 60 

L.Ed.2d 980 (1979), involved an action against a school by a nurse with a hearing impairment

who was denied admission to the school. The nurse requested a number of accommodations 

which the court found were not reasonable. The Supreme Court, in reaching its decision, 

defined a reasonable accommodation under Rehabilitation Act, as an accommodation which does 

 

3

 Defendants’ rely on a number of FHA cases for disputing the Plaintiff’s 504 reasonable accommodation request. 

But the Court has already pointed out that there are significant distinctions between the two Acts, Docket Item #16,

pp. 5-6. 

5 
not fundamentally alter the program and does not create an undue financial and administrative 

burden. Id. at. 410- 412. 

In the case of School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 

L.Ed.2d 307 (1987), a teacher who was terminated because of her susceptibility to tuberculosis 

sued the school district under the Rehabilitation Act alleging discrimination based on her 

disability. In determining whether she could do the job with accommodations the Supreme Court 

held that whether an accommodation is reasonable is an “individualized inquiry” concerning the 

specific facts of the case. Id. at 287. The Court stated that such an inquiry was essential in order 

to protect the rights of persons with disabilities. Id. Furthermore, the Court reaffirmed the two 

part test articulated in Davis. Id. n. 17.

In the case of PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 

(2001), an ADA Title III case, the court held that reasonable accommodation requests require

“an individual inquiry . . . to determine whether a specific modification for a particular person’s 

disability would be reasonable under the circumstances as well as necessary for that person, and 

yet at the same time not work as a fundamental alteration.” Martin, at.688. Martin involved a 

professional golfer who requested and was denied the use of a golf cart during tournament play 

as a reasonable accommodation.4

The Sixth Circuit recognized the “individual inquiry” with regard to reasonable 

accommodations in the case of Jones v. City of Monroe, 341 F.3d 474, 480 n. 9. (6th Cir.2003). 

The case involved a person with multiple sclerosis who received a number of parking tickets for 

parking the entire day in a one-hour parking zone. She used a wheelchair and needed to park 

 

4

 The continued validity of the McPherson case has been called in to doubt in light of the Supreme Court’s decision 

in Martin. See Cruz v. Pennsylvania Interscholastic Athletic Association, 157 F.Supp.2d 485, 498-499. (E.D.Pen. 

2001) 

6 
close to work so requested, as an accommodation, to be allowed to park all day in the one-hour 

zone. The Court found this would defeat the very purpose of the ordinance which was designed 

to facilitate parking for both disabled and nondisabled shoppers in the business district. Id. In the 

case at bar, OU housing program would continue to offer housing and any educational benefit of

the program would not be affected by Micah’s presence. His presence certainly does not defeat 

the very purpose of the program rather it supports it. The purpose of on-campus housing is to 

provide housing for students of the university. 

These cases clearly hold that when determining the reasonableness of an accommodation 

request an “individualized inquiry” is required. Micah requested that the matriculating student 

requirement be waived for him. An individual inquiry would look at the affects on the program 

if the rule is waived for him. In contrast, OU after failing to do any analysis at the time they 

rejected the accommodation request, now offers mere speculation about the affects of opening 

housing to all continuing education students and asserted it would fundamentally alter the 

program. 

The primary purpose of housing is to provide housing for students at OU. The Housing 

Department’s advertisements emphasize the social aspects and conveniences of their housing and 

make only a scant reference to academic aspect of housing. Exhibit A. Their own website offers

testimonials that emphasize convenience and social aspects of housing. Exhibit # 30. Micah’s

presence in a dorm would not fundamentally change the housing program. 

Micah meets all the other requirements of on-campus housing. He is a full time student, 

taking twelve credit-hours a semester. He pays tuition and intends to pay for housing. Micah 

attends academic classes on campus with non-disabled peers and does his homework. Exhibit B. 

There are absolutely no allegations that his presence has altered, burdened or disrupted any of 

7 
these classes. There is no reason to believe his presence in the dorms would be different. Micah 

has participated in classes and done homework. It is astounding that he is allowed to participate 

in academic classes without being deemed disruptive or a fundamental alteration of the program. 

Yet, his very presence in housing is deemed to be disruptive to his peers. Defendants’ 

allegations have no basis in fact or reality. 

The Defendants after having done no analysis at the time they denied Micah’s request 

now claim that allowing him into housing would open the doors to all continuing education 

students. This novel argument ignores that OPTIONS students are fundamentally different from 

other continuing education students. OPTIONS students must take twelve credit-hours a 

semester at the full-rate of tuition. It is a condition of participation in the OPTIONS program. 

Other continuing education students are not required to be full-time students and can take as few 

classes as they choose. OU had the opportunity to make an individual inquiry into Micah’s

request but chooses instead to now proffer this baseless flood-gate argument. 

Additionally, OU has made exceptions to the matriculating student requirement in the

past. Students in the English-as-Second-Language program have lived on campus. Feldman Dep, 

p. 93-94, Fialka-Feldman Dep. p. 78-79 .5 OU officials have admitted they have made

exceptions for other programs also such as: 

• Summer Camp Programs and Hostel Services. Defendants Brief, p. 2.

• Cooley Law School, See Application 2009-10 School Year. Exhibit # C.

• Other School’s programs, Maten Dep. p.63-65 . 

• Journalism programs. Exhibit # 15.

 

5

 The student’s name is Deniz Cikis, she lived in the student apartments at OU, specifically apartment #5308B. She 

currently resides in Istanbul, Turkey, and Plaintiff is trying to get an affidavit from her. 

8 
Given the numerous exceptions OU has made to the matriculating student requirement, 

the Defendants’ argument that granting the requested accommodation would fundamentally alter 

the program or create an undue burden is refuted by OU’s current and past practices. 

For the reasons stated above, Defendants’ motion for summary judgment should be 

denied and instead Plaintiff’s motion for summary judgment should be granted. In the

alternative, the Court should conclude that there are “material issues of fact” in dispute that 

should preclude summary judgment for the Defendants. 

C. The Plaintiff’s Disparate Treatment Claims

Plaintiff Micah Fialka-Feldman, relies upon and incorporates by reference his Issues &

Argument, Disparate Treatment section contained in his brief in support of his Motion for

Substitution of Defendant, Summary Judgment & Permanent Injunction, Docket Item #39, pp.7-

13. 

1. Plaintiff Was An Enrolled Student At OU At The Time He Applied For 

Housing And Was “Otherwise Qualified” For The Housing Program. 

There are points raised in the Defendant’s motion that require some additional response

but Plaintiff will be brief. First, the Defendants’ claim that Micah did not meet the eligibility

requirements for housing that existed at the time he filed his application. This claim is false and 

the undisputed facts in this case demonstrate Micah did meet the eligibility requirements before 

they were changed by the University officials. 

Defendants claim that the term “enrolled student” is a term of art and is defined by the 

Integrated Postsecondary Education Data System (IPEDS). This definition has nothing to do 

with the housing program. Let us begin with, the common understanding of what the word 

“enrolled” means: “to write the name of (a person) in a roll or register; place upon a list; 

9 
register,”

6

 by this definition, Micah was enrolled in classes at OU in the Fall 2007 when he

applied for housing. OU, after the fact, is attempting to assign a meaning to the word different 

from what it is commonly understood to mean. OU cannot unilaterally assign a meaning to the 

term in the contract. At the time of the application Micah was a full-time enrolled student in the 

OPTIONS program – the only set of full time students not allowed access to OU housing. 

Secondly, despite what Defendants now claim, it is clear from the undisputed facts of this 

case that the Housing Department’s staff did not use the IPEDS definition of “enrolled”. The email from Associate Dean Robert Wiggins to Kim Dombrowsky and Rich Feldman proves that

Micah was considered an enrolled student. Dean Wiggins wrote: 

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 

There are additional facts to support this, such as Mr. Maten providing a tour of the 

dorms to Micah and his father, (Feldman Dep. p.48-49.) and the acceptance e-mail by Roxanne 

Fisher at OU. Exhibit # 10. Importantly, there was no confusion about what program he was

enrolled in. Micah clearly stated on his application that he was in the OPTIONS program. 

Exhibit # 7.

2. Defendants Changed The Housing Contract Creating The Matriculating

Student Requirement In 2008 After Denying Plaintiff’s Application And To Justify Their 

Actions. 

Defendants claim that the policy change had been planned since the summer of 2007. 

Defendants’ Brief, p.5. This claim is unsupported by any facts to date. First, the Defendants 

 

6

 Dictionary.com, http://dictionary.reference.com/browse/enrolled , accessed December 1, 2009. 

10 
have not provided any documentation to show that Vice-President Snyder approved the change

in the summer of 2007. They have not presented any e-mails, memos or anything else to 

establish their claim. Defendants in their own brief admit the policy change was to “become

effective for the 2008-2009 academic year.” Defendants’ Brief, p. 5. The Court should note that 

Micah applied in October 2007 and was denied in November 2007. This means that the 

Defendants’ applied the new policy retroactively to Micah. The housing application was not 

changed to reflect the new policy until March 2008, and again, by their own admission was not

to be effective until the Fall 2008. Defendants are reaching to find a “neutral” justification for 

their discriminatory actions. 

3. Defendant Snyder’s Numerous Statements Are Proof Of Her Misperceptions 

And Paternalistic Attitude Toward Persons With Disabilities And Her Discriminatory

Intent. 

The facts also reveal that there was a discriminatory purpose behind the Defendants’ 

actions. Vice-President Snyder stated to the Board that due to Micah’s inability to read, his 

presence would change the nature of the housing program. Exhibit # 19. She stated to Professor

Howell “these kinds or programs [OPTIONS] never work” and that the OPTIONS students 

would not gain anything from the experience. She also stated she was concerned for Micah 

because of the potential behavior of other students toward him and she, rather paternalistically,

was going to do what she thought was right. Exhibit #15. 

Finally, pretext can also be shown by the fact they have allowed other nondisabled nonmatriculating students into housing on campus. See argument, infra.

Micah met the requirements spelled out on the contract/application he signed in October 

2007. OU changed their policy effective for the fall 2008, but retroactively applied it to Micah. 

11 
Ms. Snyder did this because of Micah’s disability and based on her outdated perceptions and

paternalistic attitude toward persons with disabilities. These are the undisputed facts in this case. 

Respectfully, Defendant’s request for summery judgment of Plaintiff’s disparate treatment 

claims should be denied. As demonstrated above the after-the-fact reasons Defendants now

proffer for denying Micah’s application were merely a pretext for their discriminatory actions. 

CONCLUSION

For the reasons stated above, Plaintiff respectfully requests that the Defendants’ motion 

for summary judgment be denied and asks the Court instead to grant Plaintiff’s motion for

summary judgment and permanent injunction. In the alternative, Plaintiff requests the Court find 

that there are “material issues of fact” in dispute that should preclude summary judgment for the

Defendants. 

 Respectfully submitted, 

Dated: December 3, 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 

 

12 
CERTIFICATE OF SERVICE

I hereby certify that on December 3, 2009, I electronically filed the foregoing Plaintiff’s 

Response to Defendants’ Motion for Summary Judgment 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