i

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

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 capacities, 

 

 Defendants. 

_____________________________________________________________________________/ 

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR SUBSTITUTION OF 

DEFENDANT, SUMMARY JUDGMENT AND PERMANENT INJUNCTION

Fialka-Feldman v. Oakland University Board of Trustees Doc. 43

Dockets.Justia.com
ii

TABLE OF CONTENTS

Page

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

ARGUMENT ............................................................................................................................ 2

I. Plaintiff Has No Evidence That OU Denied Him Housing Solely Because Of His 

Disability, As Required By Law To Prove His Disparate Treatment Claims. ............ 2

II. Plaintiff Is Not Entitled To Summary Judgment On His Disparate Treatment 

Claims, Because Plaintiff Is Not A Qualified Individual With A Disability................ 5

A. Plaintiff Has No Admissible Evidence That He Was An Enrolled Student..... 7

B. Plaintiff Has Admitted That He Is Not An “Enrolled Student.”...................... 9

III. Plaintiff Has No Evidence Of Pretext. ........................................................................ 10

A. Dr. Wiggins Has No Authority To Speak On Behalf Of The University On 

The Issue Of Housing.......................................................................................10

B. From Its Genesis, The OPTIONS Program Never Had A Housing 

Component.......................................................................................................12

C. Plaintiff’s Reliance On The Revised Housing Contract Is A “Red Herring.”

..........................................................................................................................13

D. Dr. Wiggins’ Email To Plaintiff’s Father Is Not Evidence Of Pretext...........14

E. OU Did Not Treat Plaintiff Differently Than Any Other ContinuingEducation Student And Therefore Plaintiff’s Discrimination Claim Fails....15

IV. Plaintiff Never Requested, And The University Did Not Deny Him, A Reasonable 

Accommodation........................................................................................................... 16

V. Plaintiff’s Requested Accommodation Is Unrelated To His Disability. .................... 18

VI. Plaintiff Is Not Entitled To A Permanent Injunction................................................. 19

CONCLUSION .......................................................................................................................20
iii

STATEMENT OF ISSUES PRESENTED

I. Is Summary Judgment for Plaintiff warranted on Counts II, III, V, and VI of 

Plaintiff’s Second Amended Complaint since Plaintiff has no evidence that he is a 

qualified individual with a disability? 

II. Is Summary Judgment warranted for Plaintiff on Plaintiff’s disparate treatment 

claims since Plaintiff has no evidence that Defendants’ legitimate, nondiscriminatory reason for declining his request for on-campus housing was a pretext 

for disability discrimination? 

III. Is Summary Judgment warranted for Plaintiff on Plaintiff’s claim that Defendants 

failed to provide him with a reasonable accommodation where the accommodation 

that Plaintiff requested was unreasonable and unrelated to his disability? 

Defendants answer “no” to each of these questions. 
iv

CONTROLLING AUTHORITY

CASES

Divito v. Oakland Univ., Case No. 229738, Michigan Court of Appeals, May 31, 2002 ............12 

Dollar Corp. v. Zebedee (In re Dollar Corp.), 25 F.3d 1320 (6th Cir. 1994).................................5 

Gratz v. Bollinger, 539 U.S. 244 (2003)....................................................................................17 

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

Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (6th Cir. 1998)....................17 

Kaplan v City of Huntington Woods, 357 Mich 612 (1959). ......................................................11 

Marbly v. Home Props. of N.Y., 205 F. Supp. 2d 736 (E.D. Mich. 2002).....................................6 

McCann v. State of Michigan, 398 Mich. 65 (1976) ..................................................................11 

McPherson v. Michigan High School Athletic Association, Inc., 119 F.3d 453 (6th Cir. 

1997) .................................................................................................................................16 

Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996).................................................3 

Oxford House-C v. City of St. Louis, 843 F. Supp. 1556 (E.D. Mo. 1994)....................................2 

Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35 (2d Cir. 2002).......... 6, 10 

Robinson v. Univ. of Akron Sch. of Law, 307 F.3d 409 (6th Cir. 2002).......................................7 

Schanz v. Village Apartments, 

998 F. Supp. 784 (E.D. Mich. 1998)............................................................................. 18, 19 

Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996). ........................................19 

Sutton v. Piper, 

2009 U.S. App. LEXIS 17201 (July 30, 3009) ...................................................................19 

Township of Lake v. Millar, 257 Mich. 135 (1932)....................................................................12 

Zibbell v. Michigan Dep’t of Human Servs., 313 Fed. Appx. 843 (6th Cir. 2009) ................... 6, 10 

Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041 (9th Cir. 1999). ................................... 16, 17 
v

STATUTES

M.C.L. § 390.153......................................................................................................................11 

M.C.L. § 390.154......................................................................................................................11

REGULATIONS

45 C.F.R. Part 84 Appendix A; 45 C.F.R. § 84.3.........................................................................6 
1 

INTRODUCTION1

Plaintiff applied to participate in only one program at Oakland University (“OU” or the 

“University”) – the OPTIONS program. Since its inception, the OPTIONS program has been a 

continuing-education program, and just like all continuing-education programs at OU, it does not 

offer on-campus housing to its participants. With this lawsuit, Plaintiff is effectively asking this 

Court to redesign the OPTIONS program (and potentially all of OU’s other continuing-education 

programs) into something that OU never offered, never intended to offer, and never has offered--

a continuing-education program that includes on-campus housing. 

Contrary to Plaintiff’s claim, this case has nothing to do with disability discrimination, 

failing to accommodate Plaintiff’s disability, or prejudices against individuals who cannot read 

or write. Indeed, Plaintiff’s reading and writing impairments have nothing to do with the reason 

he cannot live in OU’s dorms. In fact, in the Fall 2009 semester alone, nearly 20% of OU’s selfidentified disabled students live in the dorms, and of those, 41% have reading and/or writing 

impairments. 

This case is about nothing more than Plaintiff seeking a preference above every other 

continuing-education student at OU because of his disability. In other words, because he has a 

disability, he wants to be given a right that no other continuing-education student has. 

Accordingly, as set forth below and in Defendants’ Brief in Support of their Motion for 

Summary Judgment, there is no factual or legal basis for granting Plaintiff’s Motion for 

 

1 Defendants have provided this Court with a comprehensive statement of facts in its Brief in 

Support of Motion for Summary Judgment. For the sake of brevity, Defendants incorporate 

those facts by reference herein in lieu of including a counter-statement of facts. Facts critical to 

this Response are, however, stated herein. 
2

Summary Judgment. For these reasons, Plaintiff’s Motion should be denied, and Defendants’ 

Motion should be granted.2 

ARGUMENT3

I. Plaintiff Has No Evidence That OU Denied Him Housing Solely Because Of His 

Disability, As Required By Law To Prove His Disparate Treatment Claims. 

Citing an overruled case, Plaintiff incorrectly argues that he is entitled to summary 

judgment if he has evidence that his disability was a motivating factor in the University’s 

decision. (Plaintiff’s Brief, p. 10) That is the wrong legal standard. Plaintiff cannot obtain 

summary judgment on his disparate treatment claim without evidence upon which a reasonable 

juror would conclude that OU denied him housing solely because of his disability. Plaintiff has 

no such evidence. 

The only evidence Plaintiff cites in support of his claim that the University denied him 

housing because of his disability (though not solely because of his disability) are statements 

made by Mary Beth Snyder, Vice President for Student Affairs and Enrollment Management. 

Plaintiff claims that these statements are evidence that Vice President Snyder harbored 

“stereotypes, unfounded fears, misperceptions and archaic attitudes as well as simply prejudice” 

about the OPTIONS students. (Plaintiff’s Brief, p. 10) 

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

the sole support for his claim that Vice President Snyder’s statements entitle him to summary 

judgment. The decision relied upon by Plaintiff, though, was reversed by the Court of Appeals 

 

2

Plaintiff filed his Motion on December 1, 2009, which was one day late. Therefore, his Motion 

is untimely and should be denied on this basis, as well. 

3

Plaintiff concedes in his Reply Brief to Defendants’ Motion for Summary Judgment that 

Counts I and VI of his Complaint claiming Disparate Impact Discrimination should be 

dismissed. 
3

in Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), and rather than supporting 

Plaintiff’s argument, the Court of Appeals’ decision actually refutes it. 

Oxford House-C involved the City of St. Louis’ zoning ordinance that allowed no more 

than eight unrelated disabled adults to live in a single-family dwelling, but two of Oxford 

House’s group homes had apparently violated by having more than eight recovering substance 

abusers as residents. Id. at 250. The City cited Oxford House for zoning violations, and Oxford 

House sued the City for disparate treatment discrimination under Section 504 and the FHA, 

among other claims. The district court found in favor of Oxford House and enjoined the City 

from enforcing the zoning ordinance. The City appealed, and the Eighth Circuit reversed. 

In its opinion, the Court of Appeals specifically rejected the district court’s conclusion 

that a statement made by one City official that the Oxford Houses might cause “flight from the 

City” and a statement made by another City official that he would not want to live next door to 

an Oxford House and “expressed concern about transiency and property values” were evidence 

of disparate treatment discrimination: 

Having concluded Oxford House did not show the City treated the Oxford 

Houses differently from any other group, we believe the City’s enforcement 

actions were lawful regardless of whether some City officials harbor prejudice 

or unfounded fears about recovering addicts * * * We do not believe these 

isolated comments reveal City officials enforced the zoning code against the 

Oxford Houses because of the residents’ handicaps, especially considering the 

Oxford Houses were plainly in violation of a valid zoning rule and City 

officials have a duty to ensure compliance. 

Id. at 252. The Court of Appeals also reiterated that the proper standard to be applied in a 

disparate treatment case was whether the City had limited the Oxford House residents “solely by 

reason of their disability.” Id. at 253 (emphasis added). 
4

The appellate court’s decision in Oxford House-C supports OU’s position and provides a 

basis for denying Plaintiff’s Motion. Even if Vice President Snyder did harbor “prejudice or 

unfounded fears” about disabled individuals--particularly those who cannot read or write--living 

in the dorms (and she did not), her alleged isolated comments in this regard are not evidence that 

OU denied Plaintiff housing solely because of his disability. This is especially true when 

Plaintiff has no admissible evidence that the University has treated him differently than any other 

continuing-education student or that the University did anything other than enforce its rule that 

only enrolled students are permitted to live in on-campus housing.

4

 

While Vice President Snyder admits making the statements in the transcript of her 

address to the University’s Board of Trustees, she does not recall making the statements 

attributed to her by Sharon Howell. In any event, Vice President Snyder denies that any of her 

statements suggest discriminatory bias. The University’s Board of Trustees appointed Mary 

Beth Snyder as the Vice President of Student Affairs and Enrollment Management. In that 

capacity, she has authority over all on-campus housing and enrollment, and as such, the 

University speaks through her on housing and enrollment issues. (Ex. 1, Snyder Deposition, pp. 

5-6) Under her leadership, the number of enrolled, self-identified disabled students living in oncampus housing, and even more specifically, enrolled, self-identified disabled students with 

 

4 Plaintiff submitted the affidavit of Sharon Howell, a University employee, who testified that 

OU has housed high school students in the dorms for residential journalism programs and 

possibly students for other “special programs.” (See Ex. 15 to Plaintiff’s Brief, ¶ 10) OU does 

not provide housing for the journalism program. The only “special programs” during which 

individuals would live in campus housing are summer camp programs which utilize unused 

floors/space in OU’s dorms typically for one week or less during the summer when the dorms are 

not being used as part of the regular academic program, and students enrolled in degree-granting 

programs at other institutions with which OU has a reciprocity agreement. (Ex. 2, Middlebrook 

Affidavit) 
5

reading and writing impairments has steadily increased over the past four years. Consider the 

following OU Disability Support Services statistics (Ex. 3, Sisson Affidavit): 

Semester 

Number of Enrolled, 

Self-Identified 

Disabled Students 

Number of Enrolled, 

Self-Identified 

Disabled Students 

Living in OnCampus Housing 

Number of Enrolled, 

Self-Identified 

Disabled Students 

with Reading and/or 

Writing Expression 

Disabilities Living in 

On-Campus Housing

Summer/Fall 2005 

Winter/Spring 2006 

398 10 1 

Summer/Fall 2006 

Winter/Spring 2007 

427 20 4 

Summer/Fall 2007 

Winter/Spring 2008 

441 30 6 

Summer/Fall 2008 

Winter/Spring 2009 

422 43 16 

Fall 2009 383 75 31 

 

These statistics dispel any notion that Vice President Snyder or the University harbor any 

discriminatory animus against disabled students or disabled students with reading and/or writing 

impairments, as it relates to on-campus housing (or in any other program for that matter). 

Plaintiff simply has no evidence to prove that the University denied him housing solely 

on the basis of his disability. Consequently, he is not entitled to summary judgment. See e.g. 

Stewart v. Barnhart, 2005 WL 3088543 (Nov. 14, 2005 W.D. KY) (Ex. 4). 

II. Plaintiff Is Not Entitled To Summary Judgment On His Disparate Treatment 

Claims, Because Plaintiff Is Not A Qualified Individual With A Disability. 

Plaintiff cannot obtain summary judgment unless he produces evidence that would 

convince every reasonable juror that he is “a qualified individual with a disability.” Dollar 

Corp. v. Zebedee (In re Dollar Corp.), 25 F.3d 1320 (6th Cir. 1994); Marbly v. Home Props. of 
6

N.Y., 205 F. Supp. 2d 736, 740 (E.D. Mich. 2002); Jones v. City of Monroe, 341 F.3d 474, 477 

(6th Cir. 2003); Zibbell v. Mich. Dep't of Human Servs., 313 Fed. Appx. 843, 849 (6th Cir. 

2009); Alexander v. Choate, 469 U.S. 287, 300-302 (1985). 

The regulations for Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 

U.S.C. § 794(a) provide that a “qualified handicapped person" is one who, “in spite of their 

handicap” meets the academic and technical standards requisite to admission or participation in 

the recipient's education program or activity.

5

 45 C.F.R. Part 84, Appendix A; 45 C.F.R. § 84.3.6 

At the time Plaintiff submitted his housing application, the “academic and technical standards 

requisite to admission into” on-campus housing at OU was that Plaintiff had to be “enrolled as a 

student.” (Ex. 5, 2007-2008 Contract for Residence Hall Services) Without citing to a single 

fact in the record, Plaintiff makes the self-serving claim that he was “an enrolled student at OU,” 

and was, therefore, qualified for on-campus housing. (Plaintiff’s Brief, p. 8) Plaintiff’s claim in 

this regard suffers from several insurmountable flaws, and he is not qualified for housing in spite 

 

5 The regulations explain that the “in spite of” language” comports with the intent of the statute 

because, read literally, "otherwise" qualified handicapped persons include persons who are 

qualified except for their handicap, rather than in spite of their handicap. Under such a literal 

reading, a blind person possessing all the qualifications for driving a bus except sight could be 

said to be "otherwise qualified" for the job of driving. Clearly, such a result was not intended by 

Congress.” 45 C.F.R. Part 84, Appendix A. Similarly, here, Congress clearly did not intend that 

Plaintiff, who might possess all the qualifications for living in on-campus housing, except for the 

most essential one--being an enrolled student--could said to be “otherwise qualified.” That is not 

a result that Congress intended, as it would fundamentally alter the nature of housing program.

6 ADA, FHA and Section 504 claims are subject to the same analysis. See, Zibbell v. Michigan 

Dep’t of Human Servs., 313 Fed. Appx. 843, 849 (6th Cir. 2009); Reg'l Econ. Cmty. Action 

Program v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002). 
7

of his disability.

7

A. Plaintiff Has No Admissible Evidence That He Was An Enrolled Student. 

Plaintiff admits that in order to be eligible for housing at OU he had to be “enrolled as a 

student.” OU has produced irrefutable evidence that the term “enrolled as a student” has an 

actual and meaningful definition both at OU and in the Federal law governing higher education 

in general. Vice President Snyder and OU’s former Director of University Housing both testified 

that an “enrolled” student is a student in a degree-granting program. (Ex. 1, p. 9; Ex. 6, Maten 

Deposition, p. 24) Furthermore, the Integrated Postsecondary Education Data System report that 

OU is required to complete as a recipient of federal funds (20 U.S.C. § 1094(a)(17)) requires the 

disclosure of certain enrollment data, and individuals like Plaintiff who are only engaged in noncredit bearing activities are not included in “enrollment” figures. (Exs. 7 and 8, 2009-2010 

NCES Survey Materials) Similarly, the annual Fiscal Operations Report and Application to 

Participate (FISAP) that OU is required to submit directs OU to not report in its enrollment 

statistics individuals like Plaintiff who are exclusively engaged in non-credit bearing activity. 

(Ex. 9, 2008-2009 Sample FISAP Report; Ex. 10, 2010-2011 FISAP Instructions) Thus, it is not 

surprising that two experienced higher-education administrators understand that the term 

“enrolled” in this context refers to students enrolled in degree-granting programs. 

Plaintiff tries to fabricate his own definition of what it means to be “enrolled as a student” 

at OU, but: a) OU is entitled to establish its own definition (which is consistent with the 

 

7

Plaintiff’s ADA claim against the University is also barred by Eleventh Amendment Immunity. 

Robinson v. Univ. of Akron Sch. of Law, 307 F.3d 409, 413 (6th Cir. 2002) (when a plaintiff’s 

ADA claim sounds in equal protection, as opposed to a denial of due process, that claim is barred 

by Eleventh Amendment immunity).
8

definition used in Federal law governing higher education in general); and b) Plaintiff’s 

definition is self-serving and has no factual basis. (See Plaintiff’s Brief, pp. 8-9) Plaintiff simply 

cannot rebut any of OU’s evidence that the term “enrolled as a student” has an actual definition 

that governs the University’s operations, including those that entitle OU and its students to 

Federal financial assistance. (Ex. 11) Plaintiff also cannot rebut that he did not meet the 

definition of an enrolled student. Finally, Plaintiff has no evidence that OU has ever defined 

“enrolled as a student” differently than as expressed by Vice President Snyder or that OU has 

ever allowed anyone who did not meet that definition to live in the dorms with enrolled students 

during academic terms. 

Furthermore, Plaintiff blatantly misrepresents the facts when he claims that Mr. Maten 

“admits in deposition that an ‘enrolled student’ could be someone taking as little as one class.” 

(Plaintiff’s Brief, p. 9) To the contrary, Mr. Maten’s testimony was that under the former 

housing contract a student could continue to live in the residence halls if that student was taking 

as few as one credit hour, not one class. (Ex. 6, p. 22) Plaintiff did not receive any credits for 

taking classes at the University because neither OPTIONS participants nor continuing-education 

students receive credits for participating in those OU-sponsored programs. (Ex. 12, Fialka 

Deposition, pp. 83-4) 

The bottom line is, just like all other continuing-education students at OU, Plaintiff is not 

enrolled as a student, and he did not meet the academic and technical standards requisite to 

admission or participation in OU’s housing program. Therefore, Plaintiff is not a qualified 

individual with a disability under the ADA, FHA or Section 504. It is his status as a continuing-
9

education student that prevents him from living in student housing, not his disability. 

Accordingly, his Motion should be denied.

B. Plaintiff Has Admitted That He Is Not An “Enrolled Student.” 

Despite Plaintiff’s attempt to fabricate a definition of enrolled student to overcome but 

one of the fatal flaws in his case, at the end of the day, even he concedes that he is not an 

enrolled student at OU. For example, Plaintiff argues that, while not actually an enrolled 

student, he did have “all the attributes of a university student.” (Brief, p. 8) Having “attributes of 

a university student” is a far cry from actually being an “enrolled” university student. There are 

many important attributes of an enrolled student that Plaintiff lacks, such as being admitted to the 

University through its regular admission process, earning credits, receiving grades, carrying a 

grade-point average, or being enrolled in a degree-granting program. While Plaintiff may have 

some “attributes of a university student,” like using OU’s recreation facilities and the library, so 

do University faculty, staff and other visitors to the University who are not eligible to live in the 

dorms either, even he admits that he is not actually, and has never been, an enrolled student. 

Similarly, Plaintiff has admitted to the University that he was not an enrolled student. In 

an October 7, 2008 letter to the University’s counsel, Plaintiff’s counsel acknowledges that 

because of Plaintiff’s cognitive impairment, he was unable to “enroll in a program or coursework 

leading toward a degree.” Plaintiff makes the same admission in the Second Amended 

Complaint: “Because of his disability, Plaintiff cannot enroll in one of the University’s 

programs leading to a degree.” (See Second Amended Complaint, ¶ 5) Plaintiff also admitted in 

his deposition that he was not a “regular student”. (Ex. 13, Plaintiff’s Deposition, pp. 63-65) 
10

Plaintiff’s admissions that he was not enrolled as a student is tantamount to an admission 

that he did not meet the standards requisite to participation in OU’s housing program, as per the 

Contract for Residence Hall Services that he submitted; and that he is, therefore, not a qualified 

individual with a disability under the ADA, FHA or Section 504. His Motion should be denied.8 

III. Plaintiff Has No Evidence Of Pretext. 

Even though this Court does not have to reach the issue of pretext because Plaintiff 

cannot prove his prima-facie case, as discussed supra, Plaintiff also cannot obtain summary 

judgment on his disparate treatment claims without producing evidence upon which a reasonable 

juror would conclude that OU’s reason for rejecting his housing application was a pretext for 

disability discrimination. Zibbell v. Michigan Dep’t of Human Servs., 313 Fed. Appx. 843, 849 

(6th Cir. 2009); Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 49 (2d 

Cir. 2002). Plaintiff cannot meet that burden, despite the “evidence” he has advanced. 

A. Dr. Wiggins Has No Authority To Speak On Behalf Of The University On 

The Issue Of Housing. 

Plaintiff claims that Dr. Wiggins, the Associate Dean of the School of Education and 

Human Services, led him to believe that as an OPTIONS participant, he would be allowed to live 

in on-campus housing. (Plaintiff’s Brief, p. 3) He argues that the fact that other University 

administrators ultimately acted contrary to Dr. Wiggins’ statements is evidence that the 

 

8

Plaintiff makes the conclusory allegation that ”the fact that the university issued him 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.” (Plaintiff’s Brief, p. 12) There is no support 

for this allegation and certainly no basis for qualifying this as an admission on the part of the 

University that it was bestowing on Plaintiff or any other OPTIONS student a particular status. 
11

University’s reason for denying his housing application is evidence of pretext. (Plaintiff’s Brief, 

p. 12) This argument has no legal merit. 

Plaintiff has a duty to familiarize himself with the relative powers of the Oakland 

University Board of Trustees and the personnel it appoints: “It is fundamental that those dealing 

with public officials must take notice of their powers.” Kaplan v. City of Huntington Woods, 357 

Mich. 612, 619 (1959). Indeed, “[p]ersons dealing with a [public body] through its officers 

must at their peril take notice of the authority of the particular officer to bind the corporation. If 

his act is beyond the limits of his authority, the [public body] is not bound.” Id. at 619-620. 

Oakland University is governed by a Board of Trustees. M.C.L. § 390.153. The Board 

has the power to appoint personnel as the interests of OU may require. M.C.L. § 390.154. The 

Board appointed Dr. Snyder to serve as its Vice President of Student Affairs and Enrollment 

Management. In her capacity as Vice President of Student Affairs, she has authority for all oncampus housing, and as such, the University speaks through her on housing issues. Vice 

President Snyder hired Mr. Maten as the Director of University Housing. 

Dr. Wiggins as the Associate Dean of the School of Education and Human Services (like 

Sharon Howell) has absolutely no authority to speak on behalf of the University on the issue of 

housing – in fact, he admits that he never even consulted with the Housing Department to 

determine whether the OPTIONS students would be eligible for housing. (Ex. 14, Wiggins 

Deposition, p. 42) Consequently, any statements that he may have made regarding Plaintiff’s 

eligibility for housing are not binding on the University. See McCann v. State of Michigan, 398 

Mich. 65, 87 (1976)(“the authority of public agents extends only to those duties prescribed by 

statute and does not include activity which requires that authority be assumed”); Township of 
12

Lake v. Millar, 257 Mich. 135, 142 (1932)(“The extent of the authority of the people’s public 

agents is measured by the statute from which they derive their authority, not by their own acts 

and assumption of authority”); Divito v. Oakland Univ., Case No. 229738, Michigan Court of 

Appeals, May 31, 2002 (unpublished)(Ex. 15)(“Public officers can exercise only those powers 

conferred on them by law, and the state is not bound by contracts made in its behalf by agents 

who lacked authority to make an express contract”). 

Under these principles, Plaintiff is responsible for knowing the relative authority of the 

University’s administrators. The fact that Plaintiff may have thought that Dr. Wiggins had the 

authority to make an exception to the University’s housing policy is of no consequence. The 

decision was always within the authority of the Housing Department, Dr. Wiggins had no 

authority to speak on behalf of that Department, and Plaintiff cannot produce any evidence to the 

contrary. Therefore, the University’s rejection of Plaintiff’s housing application, which was 

consistent with its housing policy, is not evidence of pretext. 

B. From Its Genesis, The OPTIONS Program Never Had A Housing 

Component.

Plaintiff also claims as evidence of pretext that OU changed the OPTIONS program once 

Plaintiff expressed an interest in housing. His claims in this regard are based, again, on 

misrepresentations to this Court and conclusory allegations. Indeed, the admissible evidence 

demonstrates that housing was never a component of the OPTIONS program. 

Plaintiff claims that the OPTIONS proposal accepted by the University contained a 

housing component. (Plaintiff’s Brief, p. 2) To the contrary, the undisputed facts are that the 

Dean of Education never approved a housing component for the program. (Ex. 14, pp. 62-3) In 

fact, Dr. Wiggins testified that when the Dean of Education approved the OPTIONS proposal, 
13

“housing was not even considered as a part of the program at that point.” (Id. at 63) Indeed, 

while housing was mentioned as a possible consideration at some future time, the program 

outline of the proposal did not seek the inclusion of a housing component. (Ex. 16, pp. 3-4) 

Furthermore, Plaintiff admits that long before he ever applied for housing, Mr. Maten 

explained to him that his status as a “guest” student (a term Plaintiff assigns to himself) would be 

an obstacle to housing. (Plaintiff’s Brief, p. 3) Mr. Maten clearly recalled discussing at 

Plaintiff’s Person Centered Planning meeting (a meeting convened by the Macomb Oakland 

Regional Center (MORC)) that Plaintiff could not live in housing because being in the 

OPTIONS program did not satisfy the enrolled student requirement. (Ex. 6, pp. 36-38) Indeed, 

in MORC’s record of that meeting, Plaintiff not being a student registered in the regular program 

was documented as the obstacle to Plaintiff’s ability to live in student housing. (Ex.17) That 

obstacle was never overcome. The fact is that by at least August 22, 2007, two months before 

Plaintiff applied for housing, participants in the OPTIONS program were officially recognized as 

continuing-education students of the University and any notion that they would be regularly 

enrolled students of the University, and, therefore, eligible for housing, had been specifically 

rejected. (Ex. 18, Memo from Office of the Registrar) 

There is simply no evidence that housing was ever an approved component of the 

OPTIONS program. As a result, the fact that University did not offer housing to Plaintiff is not 

evidence of pretext. 

C. Plaintiff’s Reliance On The Revised Housing Contract Is A “Red Herring.” 

Plaintiff also claims that the revision to the housing contract after he submitted his 

application for housing is evidence of pretext. There is at least one fatal flaw to this argument, 
14

and that is that Plaintiff would not have been eligible for on-campus housing under either version 

of the contract. The application that Plaintiff submitted required that Plaintiff be an “enrolled 

student,” (Ex. 5) and Plaintiff has never been an enrolled student. See Section II, supra. 

The revised housing application does contain stricter academic requirements for enrolled 

students to remain in on-campus housing, but the fact remains that those students still must be 

enrolled. Since Plaintiff never was enrolled, the changes to the contract terms had no effect on 

Plaintiff’s eligibility for housing. Further, it was not unusual for the University to revise the 

housing contract; indeed, it has been revised three times in just the past five years. (Ex. 3) The 

revised contract is not evidence of pretext. 

D. Dr. Wiggins’ Email To Plaintiff’s Father Is Not Evidence Of Pretext. 

Plaintiff relies on an email from Associate Dean Wiggins – a University administrator 

with no authority over housing – to Roxanne Fisher (whom Plaintiff describes as an 

“experienced secretary”) as evidence that Plaintiff’s housing application was approved, but then 

later denied because of his disability. As discussed supra, Dr. Wiggins has no authority to speak 

on behalf of the University regarding housing, and consequently, Dr. Wiggins’ alleged 

representation about Plaintiff’s housing application cannot be evidence of pretext. 

Furthermore, Dr. Wiggins’ email does not state that Plaintiff had been approved to live in 

the dorms. The email simply said that Plaintiff’s application had been “accepted and is being 

processed.” (Ex. 19) As Ms. Fisher stated, she does not determine an individual’s eligibility for 

housing; her role is limited in making sure that the application is complete and the deposit is 

attached. (Ex. 20, Fisher Affidavit) And as it relates to Plaintiff’s application, the only notion 
15

she intended to convey was that “the contract form was completed and that the deposit was 

received.” (Id. at ¶4) 

Dr. Wiggins’ email to Plaintiff is not evidence that Plaintiff’s housing application had 

ever been approved. It merely indicates that he was continuing his efforts to facilitate Plaintiff’s 

desire to live in the dorms. The Housing Department controlled that decision, though, and when 

Mr. Maten learned of the application, he promptly ascertained whether Plaintiff’ had changed his 

status to an enrolled student that would have qualified him for student housing. (Ex. 6, pp. 46-

50) Doing so was well within Mr. Maten’s responsibilities as Director of University Housing, 

and his efforts to administer the housing program in a manner consistent with the University’s 

longstanding practices was appropriate, notwithstanding anything Dr. Wiggins thought, did or 

said. Consequently, Plaintiff’s claim that the University changed its position on Plaintiff’s 

housing application is not supported by evidence in the record, and therefore, does not 

demonstrate pretext. 

E. OU Did Not Treat Plaintiff Differently Than Any Other ContinuingEducation Student And Therefore Plaintiff’s Discrimination Claim Fails. 

Plaintiff claims that “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.” (Plaintiff’s Brief, p. 5) The only “evidence” that 

Plaintiff cites in support of this is the conclusory deposition testimony of his parents that they 

were aware of one young woman from Turkey, Deniz Cikis, who allegedly lived in the dorms, 

but was not in a degree-granting program. Even if Ms. Cikis was not eligible to live in the 

dorms, and OU has no record to indicate that she was not, Plaintiff’s example of one instance 

where OU may have made an error in allowing an individual who was not in a degree-granting 
16

program to live in the dorms would not be evidence that the degree-granting requirement did not 

exist or that it was waived by OU.

In sum, Plaintiff cannot identify a single person whom OU allowed to live in the 

dormitories who either was not an enrolled student, a student in a degree-granting program at an 

institution with which OU has a reciprocity agreement, or who lived in the dorms for a week or 

so as part of an independently operated summer camp program when the dorms do not operate as 

part of the regular academic program. Plaintiff’s failure in that regard, along with the fact that 

there are currently 75 disabled individuals (31 of whom have reading and/or writing 

impairments) enrolled as students in degree-granting programs living in on-campus housing, 

dispel any finding that the University’s reason for not accepting Plaintiff’s housing application 

was a pretext for disability discrimination. Summary judgment should be denied. 

IV. Plaintiff Never Requested, And The University Did Not Deny Him, A Reasonable 

Accommodation. 

An accommodation under Section 504 is reasonable “unless it requires a fundamental 

alteration in the nature of a program or imposes undue financial and administrative burdens." 

Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996). Plaintiff bears the 

burden of proving that the accommodation he requested is reasonable. Zukle v. Regents of the 

Univ. of Cal., 166 F.3d 1041, 1047 (9th Cir. 1999). Plaintiff cannot meet that burden, because the 

only accommodation that he ever proposed--a waiver of the requirement that he must be an 

enrolled student to live in the dorms--is not reasonable as a matter of law, since it would require 

a fundamental alteration in the nature of the University’s housing program. See e.g., McPherson 

v. Michigan High School Athletic Association, Inc., 119 F.3d 453, 460-62 (6th Cir. 1997). 
17

OU’s housing program is an integral part of its academic program, and the Housing 

Department has implemented special academic and social programs for on-campus housing with 

the purpose of supporting and encouraging students in their pursuit of an academic degree. (Ex. 

1, pp. 9, 29; Ex. 6, pp. 14-15) If non-degree-seeking students were permitted to live in the 

dorms, the academic focus of the housing program would be jeopardized, as testified to by Vice 

President Snyder at her deposition. (Ex. 1, pp. 27-34) 

The Sixth Circuit has pronounced that “when reviewing the substance of academic 

decisions, courts should show great respect for the faculty’s professional judgment.” 

Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (6th Cir. 1998). Similarly, the 

Ninth Circuit has held that the court “will extend judicial deference to the evaluation made by 

the institution itself, absent proof that its standards and its application of them serve no purpose 

other than to deny an education to handicapped persons.” Zukle, 166 F.3d at 1048 (citations 

omitted). These pronouncements apply with equal force to the University’s decisions about 

standards both in the classroom and in on-campus housing. Plaintiff has not offered a single fact 

to rebut that the University’s housing program is an academic program the basic nature of which 

would be altered by allowing continuing-education students to live in the dorms. And while 

Plaintiff consistently minimizes that fact, it cannot be forgotten that if OU approved Plaintiff’s 

housing application, it would have to approve the housing application of every other continuingeducation student who wanted to live in the dorms. OU cannot allow only the disabled 

continuing-education students to live in the dorms, since that would be granting a preference on 

the basis of a protected status, which the law disfavors. See e.g., Gratz v. Bollinger, 539 U.S. 

244 (2003). 
18

Given that the eligibility requirements for on-campus housing are a necessary element of 

the University’s housing and academic programs, and Plaintiff has not proposed any reasonable 

accommodation that would render him eligible for housing without changing the fundamental 

nature of the program, no reasonable juror could find in his favor. Summary judgment should be 

denied.9 

V. Plaintiff’s Requested Accommodation Is Unrelated To His Disability. 

Plaintiff’s claim that he is entitled to summary judgment because the University failed to 

reasonably accommodate his disability must also fail because the University is only obligated to 

provide Plaintiff with a reasonable accommodation if his disability is the bar to living in oncampus housing, as opposed to some other factor. Schanz v. Village Apartments, 998 F. Supp. 

784, 791 (E.D. Mich. 1998). Here, Plaintiff’s disability is not the bar to Plaintiff’s living in oncampus housing; the bar is the fact that Plaintiff is not enrolled in a degree-granting program. 

This case is similar to Schanz wherein the plaintiff was mentally disabled and sought a 

waiver or modification of the landlord's minimum income and credit worthiness requirements. In 

holding that the requested accommodation (specifically, having a relative guaranty the rent) was 

unreasonable, the court stated that “P]laintiff has no need for the Village to accept the Guarantor 

Agreement to accommodate his handicap because his handicap is not preventing him from 

obtaining an apartment at The Village, and it is plaintiff’s financial situation which he is 

 

9

Plaintiff claims that the University did not attempt to arrive at a reasonable accommodation that 

would have allowed him to live in the dorms. This is simply not true. Vice President Snyder 

met with Plaintiff and his parents; she spoke to faculty members who had Plaintiff in class; and 

she discussed the issues with other University administrators. (Ex. 21, Transcript of Address to 

Board of Trustees) 
19

requesting that defendants accommodate.” Id. at 792. See also Sutton v. Piper, 2009 U.S. App. 

LEXIS 17201 *3-*4 (July 30, 3009)(citations omitted)(Ex. 22)(“[T]he FHAA’s accommodation 

requirement is limited only to lowering barriers to housing that are created by the disability 

itself”).10

The holdings in Schanz and Sutton support not only the denial of Plaintiff’s motion, but 

also the dismissal of Plaintiff’s claims. Here, the accommodation that Plaintiff is requesting is a 

waiver of the University’s requirement that, to live in the dorms, one must be enrolled as a 

student in a degree-granting program. However, waiving that requirement does nothing to 

accommodate Plaintiff’s disability; waiving the requirement would only accommodate the fact 

that Plaintiff is not enrolled as a student in a degree-granting program. The accommodation that 

Plaintiff seeks would, because of his disability, grant him a preference or “privilege” over nondisabled continuing-education students. Such a result is not favored or required. Salute v. 

Straftord Greens Garden Apartments, 136 F.3d 293, 302 (2d Cir. 1998)(the FHAA does not 

elevate the rights of the handicapped over the non-handicapped). 

VI. Plaintiff Is Not Entitled To A Permanent Injunction. 

As discussed in detail above, Plaintiff is not entitled to a permanent injunction. In 

balancing the equities between the parties, Plaintiff completely misstates and oversimplifies the 

effect a favorable ruling for Plaintiff would have on OU allowing nine OPTIONS students to live 

in the dorms. (Plaintiff’s Brief, p.19) The actual effect would be to entitle every other 

continuing-education student who wanted to live in the dorms the right to do so. There are 

 

10 Courts should apply the same line of reasoning in FHA reasonable accommodation cases as 

they do in Section 504 cases. Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 

1996).
20

approximately 1,400 continuing-education students at OU. (Ex. 23, Snyder Affidavit) 

Permitting continuing-education students to reside in on-campus housing would jeopardize the 

ability of regularly enrolled, degree-seeking students to secure on-campus housing and change 

the very nature of OU’s on-campus housing. The balance of equities does not weigh in 

Plaintiff’s favor here; it weighs in OU’s favor.

11

 

CONCLUSION12

WHEREFORE, Defendants respectfully request that this Court deny Plaintiff’s Motion in 

its entirety, grant Defendants’ Motion, and thereby dismiss Plaintiff’s Complaint with prejudice 

and award Defendants their costs and fees incurred in defending this meritless lawsuit. 

Respectfully submitted, 

BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin 

Robert A. Boonin (P38172) 

350 South Main Street, Suite 300 

Ann Arbor, Michigan 48104 

(734) 995-3110 

boonin@butzel.com

dahle@butzel.com

Attorneys for Defendants 

Dated: December 7, 2009 

 

11 The requested injunction is also inappropriate since its scope exceeds that required to remedy 

Plaintiff’s claims. The Complaint does not seek to change the OPTIONS program or to seek 

relief for others. 

12 Defendants do not object to dismissing the claims against OU’s former Director of Housing, 

Lionel Maten. Defendants do object, however, to the substitution of the current Director. The 

current Director had no role in this matter and her inclusion in this case is unnecessary should 

relief be ordered. The current Director is a subordinate to Vice President Snyder, and since Vice 

President Snyder will remain a defendant in her official capacity with the authority to direct the 

Housing Department should an injunction be issued, there is no need for the substitution. 
21

Certificate of Service

I, Robert A. Boonin, hereby certify that on December 7, 2009, I electronically filed the 

foregoing document with the Clerk of the court using the ECF system, which will send 

notification of such filing to all counsel of record. 

BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin 

Robert A. Boonin (P38172) 

350 South Main Street, Suite 300 

Ann Arbor, Michigan 48104 

(734) 995-3110 

boonin@butzel.com

Attorneys for Defendants