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

> District Court, M.D. Florida · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10105405

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105405

## How later opinions describe it (automated extraction)

- applying § 1630.2 definitions to Title II case

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105405. Public record. Not legal advice.