Thomas Pritchard v. Florida High School Athletic Association, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THOMAS PRITCHARD,

Plaintiff,

v. Case No: 2:19-cv-94-FtM-29MRM

FLORIDA HIGH SCHOOL ATHLETIC

ASSOCIATION, INC.,

Defendant.

OPINION AND ORDER

This matter comes before the Court on the defendant’s Motion

for Summary Judgment Pursuant to Federal Rules of Civil Procedure

Rule 56 (Doc. #81) filed on March 19, 2020. Plaintiff filed a

Response (Doc. #87) on April 24, 2020, to which defendant filed an

Amended Reply (Doc. #100) on June 18, 2020. For the reasons that

1

follow, the motion is granted in part and denied in part.

I.

A. Parties

When this action commenced, plaintiff Thomas Pritchard was an

eighteen-year-old high school senior at the Canterbury School in

Fort Myers. (Doc. #76, pp. 1-2.) Defendant Florida High School

1

Defendant also filed a Motion for Oral Argument (Doc. #82)

on March 19, 2020. The Court finds oral argument unnecessary in

deciding the summary judgment motion and, therefore, the request

will be denied.

Athletic Association, Inc. is a non-profit corporation and the

athletic administrative organization that regulates student

participation in Florida high school athletic programs. (Id. p.

2.) As part of this regulation, defendant adopts and publishes

bylaws relating to student-athlete eligibility. (Id. p. 3.) One

such rule, Bylaw 9.5.1, limits student-athletes “to four

consecutive school years of eligibility beginning with school year

he/she begins ninth grade for the first time.” (Id. p. 4.) The

rule further states, “This does not imply that the student has

four years of participation. After four consecutive school years,

the student is permanently ineligible.” Id.

2

B. Factual Background

Plaintiff participated in high school athletics during his

ninth and tenth grade years in Virginia before transferring to

Florida and attending Canterbury. (Id. pp. 4-6.) Based on a pre-

enrollment assessment, Canterbury administrators recommended

plaintiff repeat the tenth grade, which he did. (Id. pp. 6-7.)

Plaintiff competed in the school’s various sports during his tenth

and eleventh grade years. (Id. p. 7.) During plaintiff’s eleventh

2

The background facts are either undisputed or read in the

light most favorable to plaintiff as the nonmoving party. However,

these facts, accepted at the summary judgment stage of the

proceedings, may not be the “actual” facts of the case. See

Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925 n.3

(11th Cir. 2000).

grade year, Canterbury staff recommended a psychologist test

plaintiff’s learning ability. (Id.) A full psychoeducational

evaluation concluded plaintiff possessed a learning disorder with

impairment in reading and comprehension. (Id.) Canterbury

administrators also identified a previous injury to plaintiff’s

hand as a physical disability that adversely affected his math

proficiency. (Id.)

Under defendant’s Bylaw 9.5.1, eleventh grade was the final

year of plaintiff’s eligibility to participate in interscholastic

competition because it was his fourth consecutive year in high

school. In August 2018, Canterbury filed a request with defendant

to accommodate plaintiff’s disabilities by waiving Bylaw 9.5.1 and

allowing a fifth year of eligibility. (Id. p. 8.) Canterbury

also filed a supplemental submission prepared by plaintiff’s

attorney, stating plaintiff was affected by two disabilities: (1)

a learning disorder; and (2) a hand injury. (Id.; Doc. #93-2, p.

33.)

Defendant’s Sectional Appeals Committee held a hearing on the

matter on September 6, 2018. (Doc. #76, p. 3.) During the hearing,

defendant was informed of plaintiff’s family history of

alcoholism, and that plaintiff’s hand injury occurred in the summer

of 2015 as a result of drinking alcohol. (Doc. #93-3, p. 89.)

After the hearing, the Committee voted to deny the waiver request,

finding the decision to have plaintiff repeat the tenth grade was

“a parental choice in order to place the student in a private

school setting.” (Doc. #76, p. 9; Doc. #93-4, p. 92.) A second

hearing was held on October 4, 2018 with the same result. (Doc.

#76, p. 10.) Plaintiff appealed the Committee’s decision to

defendant’s Board of Directors, which conducted a hearing on

October 28, 2018 and upheld the Committee’s decision. (Id. p.

11.)

C. Procedural History

Plaintiff initiated this matter in February 2019 and filed a

Second Amended Complaint (Doc. #76) on February 25, 2020. The

Second Amended Complaint alleges the following three claims: (1)

disability discrimination under the Americans with Disabilities

Act (“ADA”); (2) disability discrimination under the

Rehabilitation Act of 1973; and (3) violations of the Fourteenth

Amendment to the United States Constitution and Article I, Section

9 of the Florida Constitution. (Doc. #76, pp. 11-24.) On June 1,

2020, the Court partially granted defendant’s previously filed

motion to dismiss Count Three of the Second Amended Complaint, and

the Fourteenth Amendment portion of the claim was dismissed. (Doc.

#94.)

On March 19, 2020, defendant filed the motion for summary

judgment currently before the Court, arguing it is entitled to

summary judgment on the ADA and Rehabilitation Act claims because

plaintiff is not “disabled” under those statutes. (Doc. #81, pp.

3-24.) Regarding Count Three, the motion asserts the Court lacks

subject matter jurisdiction over the claim and therefore defendant

is entitled to summary judgment. (Id. pp. 24-25.)

II.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the

record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Hickson Corp. v. N. Crossarm Co.,

Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citation omitted). A

fact is “material” if it may affect the outcome of the suit under

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). “A court must decide ‘whether the evidence presents

a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter

of law.’” Hickson, 357 F.3d at 1260 (quoting Anderson, 477 U.S.

at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

nonmoving party. Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.

2010). However, “[i]f reasonable minds might differ on the

inferences arising from undisputed facts, then the court should

deny summary judgment.” St. Charles Foods, Inc. v. America’s

Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting

Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-

97 (11th Cir. 1983)). “If a reasonable fact finder evaluating the

evidence could draw more than one inference from the facts, and if

that inference introduces a genuine issue of material fact, then

the court should not grant summary judgment.” Allen v. Bd. of

Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).

As noted, defendant asserts it is entitled to summary judgment

on each of the three claims in the Second Amended Complaint. The

Court will address defendant’s arguments as they relate to each

claim.

III.

A. Disability Discrimination under the ADA

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132.

The term “qualified individual with a disability”

means an individual with a disability who, with or

without reasonable modifications to rules, policies, or

practices, the removal of architectural, communication,

or transportation barriers, or the provision of

auxiliary aids and services, meets the essential

eligibility requirements for the receipt of services or

the participation in programs or activities provided by

a public entity.

42 U.S.C. § 12131(2). To state a claim under Title II, plaintiff

must show (1) that he is a qualified individual with a disability;

(2) that he was either excluded from participation in or denied

the benefits of a public entity’s services, programs, or

activities, or was otherwise discriminated against by the public

entity; and (3) that the exclusion, denial of benefit, or

discrimination was by reason of plaintiff’s disability. Bricoll

v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007).

The Second Amended Complaint alleges defendant discriminated

against plaintiff by reason of his disabilities by (1) considering

his disabilities during the waiver request, and (2) refusing to

reasonably accommodate him. (Doc. #76, ¶ 48.) The main argument

in defendant’s motion for summary judgment is that plaintiff is

not disabled under the ADA. (Doc. #81, pp. 11-21.) In support,

defendant relies on the psychological report diagnosing

plaintiff’s learning disorder, medical records relating to

plaintiff’s hand injury, and admissions made by plaintiff during

3

discovery. Plaintiff responds that the record establishes he has

3

Defendant also relies on plaintiff’s unsworn interrogatory

responses. (Doc. #79.) However, these cannot be considered for

purposes of summary judgment. See Fed. Trade Comm’n v. Williams,

Scott & Assocs., LLC, 679 Fed. App’x 836, 838 (11th Cir. 2017)

(finding district court did not abuse its discretion in refusing

to consider unsworn interrogatory responses and noting, “Courts

need not consider unsworn witness statements when deciding a motion

for summary judgment”); Dutton v. Reynolds, 2014 WL 4540161, *9

(M.D. Fla. Sept. 11, 2014) (“Defendant Osilka submitted unsworn

Answers to Plaintiff’s First Amended Interrogatories for this

three disabilities: the learning disorder, the hand injury, and

alcoholism. (Doc. #87, pp. 9-17.) The Court will address each of

these in turn.

1. Learning Disorder

The ADA defines an individual with a “disability” as someone

who has “a physical or mental impairment that substantially limits

one or more major life activities of such individual.” 42 U.S.C.

4

§ 12102(1)(A). Accordingly, plaintiff must initially show that

his learning disorder constitutes a “physical or mental

impairment” for purposes of the ADA. As noted, a full

psychological evaluation was conducted on plaintiff in 2018 during

the eleventh grade and diagnosed him with the following: “Specific

Learning Disorder with Impairment in Reading, Mild,

Comprehension.” (Doc. #93-2, p. 82.) Defendant argues plaintiff’s

learning disorder does not qualify as a “mental impairment” because

it is a “mild” learning disorder. (Doc. #81, pp. 11-16.) Having

Court’s consideration on summary judgment. Unsworn statements

cannot be considered by this Court in addressing a summary judgment

motion.” (citation omitted)); MacDonald v. Circle K Stores, Inc.,

2009 WL 113377, *1 (M.D. Fla. Jan. 16, 2009) (“[U]nsworn and

unsigned interrogatory ‘answers’ plainly do not pass summary

judgment muster.”).

4

While the ADA defines disability in additional ways, see 42

U.S.C. § 12102(1)(B)-(C), plaintiff relies upon the above

definition to argue he is disabled. (Doc. #87, pp. 10-11.)

reviewed the arguments and the record, the Court finds summary

judgment on this issue is not appropriate.

The federal regulations relating to the ADA have defined

“mental impairment” as “[a]ny mental or psychological disorder,

such as intellectual disability (formerly termed ‘mental

retardation’), organic brain syndrome, emotional or mental

illness, and specific learning disabilities.” 29 C.F.R. §

5

1630.2(h)(2) (2012). While the regulations relating to the ADA

do not define “specific learning disabilities,” a regulation

designed to assist states with the education of children with

disabilities provides the following definition:

Specific learning disability means a disorder in one or

more of the basic psychological processes involved in

understanding or in using language, spoken or written,

that may manifest itself in the imperfect ability to

listen, think, speak, read, write, spell, or to do

mathematical calculations, including conditions such as

perceptual disabilities, brain injury, minimal brain

dysfunction, dyslexia, and developmental aphasia.

34 C.F.R. § 300.8(c)(10)(i). Given that plaintiff’s diagnosed

learning disorder involved impairment in reading and

comprehension, the Court finds plaintiff has submitted sufficient

5

Although this definition is contained in regulations related

to Title I of the ADA, the Court finds it instructive in this case.

See Moore v. Chilton Cty. Bd. of Educ., 1 F. Supp. 3d 1281, 1293

n.9 (M.D. Ala. 2014) (applying § 1630.2 definitions to Title II

case).

evidence to have a jury decide whether the learning disorder

constitutes a “mental impairment” under the ADA.

However, “[m]erely having an impairment does not make one

disabled for purposes of the ADA.” Toyota Motor Mfg., Ky., Inc.

v. Williams, 534 U.S. 184, 195 (2002), abrogated on other grounds

by ADA Amendments Act of 2008, Pub. L. 110-325. Similarly, a

diagnosis of a learning disorder without more is insufficient to

demonstrate a disability under the ADA. See Williamson v. Clarke

Cty. Dep’t of Human Res., 834 F. Supp. 2d 1310, 1319 n.13 (S.D.

Ala. 2011) (“A mere diagnosis of ADHD, without more, may not

suffice to establish disabled status under the ADA or the

Rehabilitation Act.”). Rather, “[c]laimants also need to

demonstrate that the impairment limits a major life activity.”

Williams, 534 U.S. at 195. Accordingly, assuming he has a mental

impairment, plaintiff must also show that his learning disorder

substantially limits one or more major life activities.

The Second Amended Complaint does not allege what major life

activity plaintiff’s learning disorder affects, but in his

Response plaintiff asserts all three of his alleged disabilities

“substantially limit[] his major life activities of education and

athletics.” (Doc. #87, p. 9.) From the outset, the Court finds

that “[t]he inability to play sports does not constitute a

substantial impairment of a major life activity.” Coker v. Tampa

Port Auth., 962 F. Supp. 1462, 1467 (M.D. Fla. 1997), disagreed

with on other grounds by Macuba v. Deboer, 193 F.3d 1316, 1324

n.18 (11th Cir. 1999); see also Rossbach v. City of Miami, 371

F.3d 1354, 1358 n.6 (11th Cir. 2004) (finding district court

correctly ruled that “participating in sport activities” was not

a major life activity). Accordingly, plaintiff’s argument that

his alleged disabilities limited his ability to play sports is

irrelevant for purposes of the ADA.

As to plaintiff’s claim that his learning disorder affected

his education, plaintiff states his alleged disabilities “severely

limited his ability to master and learn complex and multiple

subjects in Canterbury’s enhanced educational setting,” and

therefore he was limited “in the major life activity of learning.”

(Doc. #87, pp. 10-11.) Because the ADA regulations include

“learning” in a non-exhaustive list of “major life activities,” 29

C.F.R. § 1630.2(i)(1)(i), plaintiff has met his burden of showing

his impairment affects a major life activity under the ADA.

Accordingly, the final issue is whether the learning disorder

“substantially limits” plaintiff’s ability to learn.

“Determining whether the impairment substantially limits a

major life activity is ordinarily a question of fact for the jury;

however, summary judgment is appropriate if Plaintiff fails to

create a genuine issue of fact in this regard.” Irizarry v. Mid

Fla. Cmty. Servs., Inc., 2009 WL 2135113, *3 (M.D. Fla. July 14,

2009). An impairment is a disability within the meaning of the

ADA if it “substantially limits the ability of an individual to

perform a major life activity as compared to most people in the

general population.” 29 C.F.R. § 1630.2(j)(1)(ii). “An impairment

need not prevent, or significantly or severely restrict, the

individual from performing a major life activity in order to be

considered substantially limiting.” Id. Determining “whether an

impairment substantially limits a major life activity requires an

individualized assessment,” id. § 1630.2(j)(1)(iv), and “[t]he

comparison of an individual’s performance of a major life activity

to the performance of the same major life activity by most people

in the general population usually will not require scientific,

medical, or statistical analysis,” id. § 1630.2(j)(1)(v).

In arguing his learning disorder substantially limits his

ability to learn, plaintiff relies upon the psychoeducational

evaluation conducted in March 2018. (Doc. #87, pp. 9-11.) As

part of that evaluation, the examiner conducted numerous tests and

assessments on plaintiff. (Doc. #93-2, p. 75.) Per the

evaluation, plaintiff scored in the average range in the following

areas:

•

IQ score;

•

Verbal reasoning ability;

•

Nonverbal reasoning ability;

•

Ability to sustain attention, concentrate, and exert

mental control;

•

Ability to process simple or routine visual material

without making errors;

•

Long-term retrieval and short-term working memory

clusters;

•

Attention; and

•

Overall cognitive ability.

(Id. pp. 77-82.) Plaintiff also scored in the “superior” range

regarding his ability to plan. (Id. p. 81.) In measuring

plaintiff’s academic levels, the evaluation found that plaintiff

was performing at grade-level in written language, but below grade

level in math and reading. (Id. p. 80.) Reading was described as

“a significant weakness.” (Id.) As part of the report’s diagnosis

of “a learning disability in reading,” it was recommended various

accommodations be made for plaintiff at school, such as “100%

extended time on all academic and standardized tests,” and “[u]se

of a reader on tests where reading is not being directly tested.”

(Id. pp. 82-83.)

Apart from the evaluation results, plaintiff has admitted to

the following:

•

He was never referred for special educational psychology

testing until 2018;

•

He was never assigned an individualized educational

program;

•

He met the requirements of each school he attended to be

promoted to the next school grade;

•

He was admitted into the eleventh grade in a Florida

public school prior to withdrawing in November 2017; and

•

He performed as well as the average student prior to his

withdrawal.

(Doc. #80, pp. 4-5, 15.) Finally, plaintiffs’ Canterbury

transcripts indicate he took nine honors courses and one advanced

placement course during the tenth and eleventh grades, with his

lowest grade a C in honors chemistry. (Doc. #93-2, p. 14.) The

record also indicates plaintiff graduated from Canterbury (Doc.

#45, p. 5) and was accepted into college (Doc. #14-4, p. 236).

Defendant argues that based on the above evidence, plaintiff

“can exhibit no pattern of substantial academic disabilities” and,

therefore, cannot prove a disability. (Doc. #81, p. 18.) Having

considered the evidence in the record, the Court finds whether

plaintiff’s learning disability “substantially limited” his

ability to learn is an issue for a jury. It is true that the

psychological evaluation indicates plaintiff scored in the average

range across a variety of subjects, and “average (or above-average)

performance presumptively establishes the absence of a substantial

limitation.” Black v. Nat’l Bd. of Med. Exam’rs, 281 F. Supp. 3d

1247, 1249 (M.D. Fla. 2017). However, plaintiff also scored below

average in math and reading, with reading described as “a

significant weakness,” and accommodations were recommended to help

plaintiff overcome his learning disorder. Furthermore, while

plaintiff’s grades at Canterbury were Cs and above, he received Ds

and an F in multiple courses during his ninth and tenth grades in

Virginia. (Doc. #93-2, p. 13.) Accordingly, the Court finds that

plaintiff has adduced sufficient evidence to create a genuine issue

of material fact as to whether his learning disorder substantially

limits his ability to learn. Cf. Black, 281 F. Supp. 3d at 1252-

53 (finding no reasonable factfinder could conclude ADHS

substantially limited Black in comparison to most people in the

general population when “Black’s biographical record consistently

reveals average or above-average performance,” including

graduating at the top of her class in high school, excelling on

the SAT, graduating from Princeton University, and enrolling at

the University of Pennsylvania). Therefore, summary judgment on

6

this issue is inappropriate.

2. Hand Injury

In addition to the learning disorder, the Second Amended

Complaint alleges plaintiff’s hand injury constitutes a disability

under the ADA. (Doc. #76, ¶ 49.) Assuming the injury constitutes

6

Given the Court’s conclusion, it need not address

plaintiff’s suggestion that he repeated tenth grade because of his

learning disorder, as opposed to defendant’s conclusion that it

was the result of a parental decision to enroll plaintiff in a

private school.

a physical impairment, plaintiff must show that it substantially

limits his ability to learn. “In determining whether an injury

substantially limits a major life activity, we consider ‘(1) the

nature and severity of the impairment; (2) the duration or expected

duration of the impairment; and (3) the permanent or long term

impact, or the expected permanent or long term impact of or

resulting from the impairment.’” Standard v. A.B.E.L. Servs.,

Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (quoting Gordon v. E.L.

Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir. 1996)). Having

reviewed the record, the Court finds plaintiff has failed to adduce

sufficient evidence to allow a reasonable factfinder to conclude

the hand injury substantially limits his ability to learn.

The medical records submitted as exhibits to the Second

Amended Complaint indicate plaintiff injured his hand in June 2015

by hitting a glass door. (Doc. #93-2, p. 59.) Plaintiff went to

the emergency room and had sutures put in his wrist and one finger.

(Id.) As a result, his fingers were in pain and he was unable to

straighten them. (Id.) The treating physician’s assistant

recommended plaintiff not play lacrosse or basketball until pain

free and fully functional, “anywhere from 3 weeks to 3 months

depending on the degree of the injury.” (Id. p. 60.) However,

apparently problems persisted, and a subsequent MRI found two

tendon tears and a ganglion cyst. (Id. pp. 61-64.)

In suggesting his hand injury substantially limits his

ability to learn, plaintiff relies on letters written by his mother

and the Canterbury math lab director. (Doc. #87, p. 10.) These

letters, which were submitted to defendant as part of the waiver

process, discuss the hand injury and the resulting need for

surgery, plaintiff’s need to write with his left hand while his

right was immobilized, and his struggles in math as a result.

(Doc. #93-2, pp. 11, 17-18.) However, because neither of these

letters qualify as sworn statements, they cannot be considered on

a motion for summary judgment. See First-Citizens Bank & Tr. Co.,

Inc. v. Brannon, 722 Fed. App’x 902, 905 (11th Cir. 2018) (“As a

general rule, district courts may not consider unsworn statements

when determining the propriety of summary judgment.” (marks and

citation omitted)); Williams, Scott & Assocs., LLC, 679 Fed. App’x

at 838 (finding district court did not abuse its discretion in

refusing to consider unsworn letters on motion for summary

judgment); Worthy v. Mich. Bell Tel. Co., 472 Fed. App’x 342, 344

(6th Cir. 2012) (“Because these letters are unsworn, they are not

competent summary judgment evidence, and the district court

properly refused to consider them in ruling on Michigan Bell’s

motion for summary judgment.”).

Without the letters, there is insufficient evidence from

which a reasonable factfinder could determine the hand injury

substantially limits plaintiff’s ability to learn. Accordingly,

plaintiff has failed to show his hand injury is a disability under

the ADA, and, therefore, summary judgment on this issue is

appropriate. See Ates-Jackson v. Verizon Wireless (VAW) LLC, 505

Fed. App’x 871, 873 (11th Cir. 2013) ( “Summary judgment is

appropriate when the moving party meets its burden of production,

demonstrating that no genuine issue of any material fact exists,

and the non-moving party fails to present evidence showing that a

reasonable jury could find in its favor.”).

3. Alcoholism

Finally, plaintiff states he suffers from alcoholism, which

he argues is a disability under federal law. (Doc. #87. p. 17.)

However, “[a]lcoholism is not a per se disability, but rather must

be shown to be an impairment that substantially limits on[e] or

more of a plaintiff’s major life activities.” Knowles v. Knight,

2011 WL 13175198, *3 (M.D. Fla. July 8, 2011) (citation omitted);

see also Goldsmith v. Jackson Mem’l Hosp. Pub. Health Tr., 33 F.

Supp. 2d 1336, 1342 (S.D. Fla. 1998) (“The ADA requires an

individualized determination that a claimant has a history of

impairment, thus alcoholism cannot be classified a per se

disability.”). “Alcoholism does not substantially limit a major

life activity when the abuse, although frequent, is only

temporarily incapacitating. Permanency, not frequency, is the

touchstone of a substantially limited impairment.” Knowles, 2011

WL 13175198, *3 (citations omitted).

In arguing his alcoholism qualifies as a disability,

plaintiff relies upon (1) his family history of alcoholism, (2)

the fact that his hand injury occurred as a result of alcohol

consumption, (3) his fears of being associated with alcoholism,

and (4) his joining Alcoholics Anonymous and receiving counseling

after his waiver was denied. (Doc. #87, pp. 17-20; Doc. #14-3,

pp. 233-34.) The Court finds this evidence insufficient to

demonstrate a disability under the ADA. Despite plaintiff’s

alleged alcohol dependence, he was able to participate in sports

throughout his life, never received a grade below a C at

Canterbury, and was admitted to college. “In sum, while

Plaintiff’s alcohol dependence may have caused him intermittent

periods of temporary incapacity, these periodic issues did not

rise to the level of establishing a permanent impairment and, thus,

do not constitute a disability under the ADA.” Knowles, 2011 WL

13175198, *4; see also Goldsmith, 33 F. Supp. 2d at 1342 (“History

of treatment does not . . . establish that alcoholism substantially

impacted a major life activity.”). Because plaintiff has failed

to present sufficient evidence to show his alcoholism

“substantially limited” one or more major life activities, his

alcoholism does not qualify as a disability under the ADA.

Accordingly, summary judgment is appropriate on this issue as well.

B. Disability Discrimination under the Rehabilitation Act

Turning to Count Two in the Second Amended Complaint, the

Rehabilitation Act provides, in pertinent part, “No otherwise

qualified individual with a disability . . . shall, solely by

reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a). To establish a prima

facie case of discrimination under the Rehabilitation Act,

plaintiff must show that he was: (1) disabled or perceived to be

disabled; (2) a qualified individual; and (3) discriminated

against on the basis of his disability. Shannon v. Postmaster

Gen. of U.S. Postal Serv., 335 Fed. App’x 21, 24 (11th Cir. 2009)

(citing Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)).

Furthermore, if establishing discrimination by failure to make a

reasonable accommodation, plaintiff must show that (1) he was

disabled, (2) he was otherwise qualified, and (3) a reasonable

accommodation was not provided. Nadler v. Harvey, 2007 WL 2404705,

*5 (11th Cir. Aug. 24, 2007) (citing Lucas v. W.W. Grainger, Inc.,

257 F.3d 1249, 1255 (11th Cir. 2001)).

The Second Amended Complaint alleges defendant discriminated

against plaintiff because of his disabilities in violation of the

Rehabilitation Act. (Doc. #76, pp. 16-21.) In moving for summary

judgment on this claim, defendant makes the same argument as it

did on the ADA claim: plaintiff is not “disabled” for purposes of

the statute. (Doc. #81, pp. 5-21.) The Court need not readdress

this issue. Claims raised under the Rehabilitation Act are

evaluated under the same standards as claims raised under the ADA,

Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279

n.3 (11th Cir. 2001), and “[t]he standard for determining whether

a person is disabled under the Rehabilitation Act is the same as

under the ADA,” Hunter v. U.S. Postal Serv., 535 Fed. App’x 869,

872 n.2 (11th Cir. 2013). Accordingly, as stated for the reasons

above, the Court finds plaintiff’s hand injury and alcoholism do

not constitute disabilities under the Rehabilitation Act.

However, because there are disputed issues of material fact as to

whether plaintiff’s learning disorder constitutes a disability

under both statutes, summary judgment on Count Two as a whole is

inappropriate.

C. Violation of Due Process Clause of Florida Constitution

The third and final claim in the Second Amended Complaint

originally alleged that by denying the waiver request, defendant

violated plaintiff’s substantive due process rights under the

Fourteenth Amendment of the United States Constitution and Article

I, Section 9 of the Florida Constitution. (Doc. #76, p. 21.)

However, defendant previously filed a motion to dismiss the claim

for lack of subject matter jurisdiction, which the Court granted

in part, dismissing the Fourteenth Amendment portion of the claim.

(Doc. #94.) Accordingly, the only remaining claim in Count Three

is the state law claim, which the Second Amended Complaint asserts

this Court has supplemental jurisdiction over pursuant to 28 U.S.C.

§ 1367. (Doc. #76, ¶ 7.)

In moving for summary judgment, defendant again argues this

Court lacks subject matter jurisdiction over the claim, stating,

“The privilege of participating in interscholastic athletics falls

outside the rights, privileges and immunities secured by the

Constitution of the United States and protected by the Federal

Courts.” (Doc. #81, p. 24.) As it did in its previous motion to

dismiss, defendant’s summary judgment motion fails to address the

substantive merits of plaintiff’s state law claim or the

supplemental jurisdiction issue. Therefore, the request for

7

summary judgment on Count Three will be denied.

Accordingly, it is now

ORDERED:

7

While defendant’s Amended Reply addresses the substantive

merits of the state law claim in arguing for summary judgment (Doc.

#100, pp. 6-7), “District Courts, including this one, ordinarily

do not consider arguments raised for the first time on reply,”

Allah El v. Avesta Homes, 2012 WL 515912, *3 (M.D. Fla. Feb. 16,

2012). Furthermore, even if the Court were convinced not to

exercise supplemental jurisdiction over the claim due to its

alleged lack of merit, summary judgment would still be

inappropriate. See Stalley ex rel. U.S. v. Orlando Reg’l

Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“A

dismissal for lack of subject matter jurisdiction is not a judgment

on the merits and is entered without prejudice.”).

1. Defendant’s Motion for Summary Judgment Pursuant to Federal

Rules of Civil Procedure Rule 56 (Doc. #81) is GRANTED in

part and DENIED in part. The motion is granted as to

Counts One and Two to the extent these counts allege (1)

plaintiff’s hand injury and alcoholism are disabilities,

and (2) participation in high school athletics is a major

life activity. The motion is otherwise denied.

2. Defendant Motion for Oral Argument (Doc. #82) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 30th day of

June, 2020.

0 Ep

: le hy ) Z. A, Gob

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record