Mallon v. Frostburg State University

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

SHANE MALLON,

*

Plaintiff, pro se

*

v. Civil No.: BPG-19-795

*

FROSTBURG STATE UNIVERSITY,

et al., *

Defendants *

* * * * * * * * * * * * * *

MEMORANDUM OPINION

The above-referenced case was referred to the undersigned for all proceedings with the

consent of the parties, pursuant to 28 U.S.C. 636(c) and Local Rule 301.4. (ECF No. 17).

Currently pending are defendants’ Motion for Sanctions or, in the Alternative, for Summary

Judgment (“defendants’ Motion”) (ECF No. 87), plaintiff’s Motion for Summary Judgment

(“plaintiff’s Motion”) (ECF No. 95), defendants’ Reply in Support of defendants’ Motion for

Sanctions or, in the Alternative, for Summary Judgment and Opposition to plaintiff’s Motion for

Summary Judgment (“defendants’ Reply”) (ECF No. 96), and plaintiff’s Reply in Support of

Shane Mallon’s Motion for Summary Judgment (“plaintiff’s Reply”) (ECF No. 98). No hearing

is deemed necessary. Loc. R. 105.6. For the reasons discussed herein, defendants’ Motion for

Sanctions or, in the Alternative, for Summary Judgment (ECF No. 87) is GRANTED and

plaintiff’s Motion for Summary Judgment (ECF No. 95) is DENIED.

I. BACKGROUND

The court incorporates the facts set forth in its previous opinion (ECF No. 32 at 4-10)1

and adds additional facts pertinent to the pending motions. In 2017, plaintiff enrolled as a

student at defendant Frostburg State University (“FSU”) for the fall semester. (ECF No. 95 at 1).

During that semester, plaintiff’s student account was put on hold because he had not complied

with FSU’s immunization policy. (Id.) FSU’s immunization policy “requires all students to be

immunized or show proof of immunity for measles, mumps, rubella, diphtheria, and tetanus, and

have documentation of such immunity on file with the Brady Health Center (which is [FSU’s]

medical center).” (ECF No. 18-1 at 3). Plaintiff reported to FSU that he had been diagnosed

with a medical condition, rheumatoid arthritis, that he takes immunosuppressive medications to

treat this condition, and that he therefore cannot receive vaccinations. (ECF No. 95 at 1).

Following conversations with the Brady Health Center, plaintiff’s hold was lifted on his student

account so he could register for spring 2018 semester classes. (Id. at 2). During the spring 2018

semester, plaintiff had a hold placed on his student account again due to his noncompliance with

FSU’s immunization policy.2

Defendants advised plaintiff that he could comply with the immunization policy by (1)

obtaining his childhood vaccination records; (2) taking a measles, mumps, and rubella (“MMR”)

antibody titer blood test “to see if his childhood vaccines still provided him with immunity;” or

1 The facts set forth in the court’s previous opinion denying defendants’ Motion to Dismiss, or,

in the Alternative, for Summary Judgment (ECF No. 32) are still operative because no discovery

was conducted by plaintiff and because plaintiff did not provide responses to defendants’

interrogatories and requests for production of documents.

2 Plaintiff also had a second hold on his student account due to a loan he had taken out to

complete a winter semester class. (ECF No. 95 at 3). This hold was temporarily lifted in order

to allow plaintiff to register for summer and fall 2018 classes and permanently resolved when

plaintiff repaid the loan in August 2018. (ECF No. 18-1 at 4).

2

(3) signing a religious exemption waiver “acknowledging that he would be identified as at risk

for illness in the event of an outbreak on campus and be required to stay away from campus.”

(ECF No. 18-1 at 2-3). Plaintiff advised that he was previously vaccinated as a child in Ireland,

but that he had no way to obtain his vaccination records. (ECF No. 18-1 at 3). Plaintiff also

declined to take an MMR antibody titer test. (ECF No. 18-1 at 4). Additionally, plaintiff

declined to sign the religious exemption waiver because he believed it would compromise his

principles. (Id.) FSU also offered plaintiff the option of signing a newly created waiver “for

reasons of conscience,” but plaintiff declined. (Id.) Plaintiff’s doctor, John Miller, M.D., sent a

letter to FSU stating that plaintiff was unable to receive live vaccinations. (ECF No. 22-2 at 9).

This letter, however, did not address whether plaintiff could receive non-live vaccinations such

as the required tetanus and diphtheria vaccine (“Tdap”). The Brady Health Center informed Dr.

Miller of this Tdap requirement but did not receive any further communications from him. (ECF

No. 23-3 at 22). Therefore, FSU would not lift the hold on plaintiff’s account to allow him to

register for summer or fall 2018 classes. (ECF No. 22-2 at 11).

On November 8, 2018, plaintiff was readmitted to FSU. (ECF No. 95-16 at 22). Plaintiff

stated that FSU personnel enrolled him in two classes but that plaintiff wanted to drop them

because “[i]t was at this time I knew [FSU] was determined to continue to retaliate against me

until I left the school.” (ECF No. 95 at 7). When plaintiff went to drop these two classes, he

found that he needed to leave FSU or submit a leave of absence form. He stated that he filled out

a leave of absence form but “never heard if [FSU] accepted it.”3

3 Plaintiff includes a leave of absence form, which he signed on January 25, 2019, but it does not

have signatures for the blocks labeled “Financial Aid’s Signature” or “Advisor’s

Signature/Approval.” (ECF No. 95-16 at 32). The form states “[p]lease complete, print and

3

On March 16, 2019, plaintiff filed his amended Complaint against defendants FSU and

the State of Maryland d/b/a Frostburg State University (collectively, “defendants”), alleging that

defendants discriminated against him on the basis of his disability in violation of the Americans

with Disabilities Act (“ADA”)4 and the Rehabilitation Act of 1973 (“Rehabilitation Act”). (ECF

No. 2 at 11–16). Defendants filed a Motion to Dismiss (ECF No. 18) which this court denied on

September 6, 2019 following a hearing. (ECF No. 33). In denying defendants’ Motion to

Dismiss, this court stated “I note that the parties have not had the benefit of discovery. After the

record is developed through discovery, it may be that there are no factual disputes remaining.”

(ECF No. 32 at 20 n.5). Following defendants’ Motion to Dismiss and the hearing, but before

this court issued its denial of defendants’ Motion to Dismiss, plaintiff’s counsel filed a Motion to

Withdraw (ECF No. 27) which this court subsequently granted. (ECF No. 34). Plaintiff was

afforded additional time to retain new counsel, but chose to proceed pro se. (ECF Nos. 37, 39,

40). Thereafter, on November 14, 2019, an amended scheduling order was entered with a

discovery deadline of April 6, 2020. (ECF No. 49).

On December 13, 2019, defendants served their First Set of Interrogatories and First

Request for Production of Documents on plaintiff. (ECF No. 85-1 at 10-29). On December 19,

2019, defendants served their First Set of Requests for Admission and Second Set of

obtain signatures. Return to the Registrar’s Office upon completion.” There is no date listed in

the “Date form was returned” box. (Id.)

4 While plaintiff brings suit pursuant to the ADA generally (ECF No. 1 at 11-12), Title II is the

governing statute for discrimination against an individual with a disability by exclusion from

participation in or denial of benefits of the services, programs, or activities of a public entity. 42

U.S.C. 12132; Davis v. Univ. of N.C., 263 F.3d 95, 98 (4th Cir. 2001). Here, plaintiff alleges

that he was discriminated against by FSU, a public higher education institution within the state of

Maryland, on the basis of his disability. Accordingly, Title II is the applicable section of the

ADA.

4

Interrogatories on plaintiff. (Id. at 41-48, ECF No. 87-11). On January 21, 2020, plaintiff

answered defendants’ First Set of Requests for Admission. (ECF No. 87-12). On January 22,

2020, plaintiff filed a Motion to Strike defendants’ First Request for Production of Documents.

(ECF No. 58). The court rejected plaintiff’s Motion to Strike and noted that plaintiff should

follow the undersigned’s informal discovery dispute procedure. (ECF No. 59). Plaintiff did not

assert any objections to defendants’ interrogatories at that time. Following letters from the

parties regarding the discovery dispute as to defendants’ document requests, on February 7,

2020, the undersigned ordered plaintiff to “[p]rovide complete responses to [defendants’] First

Request for Production of Documents” by no later than February 21, 2020. (ECF No. 64 at 2).

Plaintiff was advised that if he did not comply with this order, “he may be subject to sanctions

pursuant to Federal Rule of Civil Procedure 37.” (Id.)

On April 24, 2020, the parties filed another discovery dispute for the undersigned’s

resolution because plaintiff had yet to respond to defendants’ interrogatories and requests for

production. (ECF Nos. 68, 69, 70). On April 28, 2020, the undersigned filed a second order,

stating “[i]t is clear that [plaintiff] has not complied with the court’s previous order,” and

ordering plaintiff to “provide written responses to [defendants’] First Set of

Interrogatories . . . and [defendants’] Second Set of Interrogatories . . . and produce the requested

documents in [defendants’] First Request for Production of Documents.” (ECF No. 71 at 1).

The undersigned also advised plaintiff “that if he does not comply with this Order, he may be

subject to sanctions pursuant to Federal Rule of Civil Procedure 37, including dismissal of this

lawsuit.” (Id. at 2). Defendants filed a status report on June 8, 2020, and a joint status report

with plaintiff on June 18, 2020, stating that discovery had not been completed. (ECF No. 72,

5

74). Accordingly, an amended scheduling order was entered extending the discovery deadline to

September 30, 2020. (ECF No. 75).

On June 30, 2020, the parties filed letters pertaining to another discovery dispute

regarding plaintiff’s lack of response to defendants’ discovery requests. (ECF No. 76, 77, 78).

On July 2, 2020, this court issued a third order granting an extension of time to complete

discovery due to the ongoing COVID-19 pandemic and again directing plaintiff to provide

responses to defendants’ discovery requests by no later than July 10, 2020. (ECF No. 79). The

undersigned, once again, warned plaintiff that failure to comply with the court’s order could

result in dismissal of the case, and noted that no further extensions would be granted. (Id. at 2).

On July 24, 2020, defendants informed the undersigned of another discovery dispute.

(ECF Nos. 80, 81). This court ordered plaintiff to provide his position letter when he did not

comply with this court’s informal discovery dispute procedure. (ECF No. 82). Plaintiff filed his

position letter regarding the dispute on July 29, 2020. (ECF No. 83). On August 7, 2020, the

court issued a fourth order providing plaintiff with “one last opportunity” to respond to

defendants’ discovery requests and sign releases for medical records. (ECF No. 84). On August

25, 2020, defendants reported that plaintiff had “provided no interrogatory answers, no responses

to the Requests for Production, and no responsive documents,” and additionally “refused to sign

the [medical] releases.” (ECF No. 85 at 2). Since defendants first propounded discovery on

plaintiff in December 2019, more than eight months passed during which plaintiff did not

provide responses to defendants’ interrogatories or document production requests. On

September 2, 2020, the undersigned approved defendants’ proposed briefing schedule for their

now pending Motion for Sanctions or, in the Alternative, Summary Judgment. (ECF No. 86).

6

II. DEFENDANTS’ MOTION FOR SANCTIONS

Defendants’ primary argument is that plaintiff’s case should be dismissed as a sanction

for not complying with the court’s multiple orders to produce discovery. (ECF No. 87-1 at 7-

15).

A. Standard of Review

Federal Rule of Civil Procedure 37 provides that the court may impose sanctions upon a

party that does not obey a discovery order, up to and including dismissal of the case, and

empowers the court to sanction a party for failure to comply with a court order regarding

discovery. Fed. R. Civ. P. 37(b)(2)(A), 37(b)(2)(A)(v). Prior to imposing sanctions, the court

should consider: “(1) whether the non-complying party acted in bad faith; (2) the amount of

prejudice that noncompliance caused the adversary; (3) the need for deterrence of the particular

sort of non-compliance; and (4) whether less drastic sanctions would have been effective.”

O’Briant v. Nestle Dreyer’s Ice Cream, No. ELH-18-1048, 2020 WL 3791958, at *7 (D. Md.

July 6, 2020) (quoting Belk v. Charlotte Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir.

2001)).

Pursuant to Federal Rule of Civil Procedure 41(b), “a defendant may move to dismiss” a

case “[i]f the plaintiff fails to prosecute or to comply with . . . a court order.” Fed. R. Civ. P.

41(b). The court must consider: “(1) the plaintiff's degree of personal responsibility; (2) the

amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately

proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than

dismissal.” Id. (quoting Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019)). A plaintiff's

pro se status does not excuse him from compliance with the Federal Rules of Civil Procedure.

7

Id. at *8 (citing Dancy v. Univ. of N.C. at Charlotte, No. DCK-08-166, 2009 WL 2424039, at *2

(W.D.N.C. Aug. 3, 2009), Arnett v. Prince George's Cnty., No. AW-02-3861, 2004 WL

3313218, at *2 (D. Md. July 29, 2004)). Sanctions regarding discovery will be reviewed “for

abuse of discretion.” Brown v. Elliott, 876 F.3d 637, 645 (4th Cir. 2017) (quoting Hoyle v.

Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011)).

B. Discussion

In their Motion, defendants argue that this case should be dismissed as a sanction for

plaintiff’s failure to obey the court’s orders regarding production of discovery pursuant to both

Rule 37(b)(2) and Rule 41(b). (ECF No. 87-1 at 7-15). Defendants maintain that the dismissal

of this case is the only appropriate sanction because plaintiff has failed to produce any discovery

over the course of this case, despite four orders from this court to do so. Defendants argue that

dismissal is appropriate pursuant to Rule 37(b)(2) and/or Rule 41(b). Plaintiff does not contest

defendants’ Motion for Sanctions5, other than to state that “I know I’ve missed deadlines but I

am trying hard to do the right thing” and “I will try harder to comply with all future deadlines.”

(ECF No. 98 at 3).6 The factors to consider pursuant to Rule 37(b)(2) and Rule 41(b) are

discussed in turn below.

The first factor to consider pursuant to Rule 37(b)(2) is whether plaintiff has acted in bad

faith. “Failure to obey court orders, especially repetitively, amounts to bad faith.” Paradyme

5 Plaintiff’s Motion primarily discusses his Motion for Summary Judgment, which is discussed

further below.

6 The court notes that, despite plaintiff’s statement that he would “try harder to comply with all

future deadlines,” he also stated that he would try to respond to defendants’ Motion for Summary

Judgment, although “[i]t may take me two weeks to complete.” (ECF No. 98 at 4). That

statement was filed with the court on April 5, 2021, and as of the date of this opinion, over four

months later, plaintiff has yet to file such a response.

8

Mgmt., Inc. v. Curto, No. PWG-17-3687, 2018 WL 9989656, at *8 (D. Md. June 11, 2018).

Here, plaintiff has blatantly disregarded and ignored four orders from this court, filed over the

course of five months, to produce discovery. As defendants note, “[t]he District of Maryland has

dismissed actions for bad faith for similar violations.” (ECF No. 87-1 at 9) (citing White v.

Shoppers Food Warehouse Corp., No. JKS-11-1955, 2013 WL 599105, at *2 (D. Md. Feb. 14,

2013) (“Here, four separate failures to respond to a court order support a finding of bad faith.”),

Labeau v. Motor Vehicle Admin., No. BEL-06-1153, 2008 WL 11509486, at *1 (D. Md. Nov.

26, 2008) (dismissing pro se plaintiff’s ADA case pursuant to Rule 37(b)(2) after violating four

court orders to execute medical release)). Plaintiff’s “disregard for the Federal Rules of Civil

Procedure and Local Rules of this [c]ourt, as well as this [c]ourt's orders, demonstrates a ‘pattern

of indifference and disrespect to the authority of the court.’” Pisani v. Baltimore City Police

Dept., No. WDQ-12-1654, 2014 WL 1401934, at *3 (D. Md. Apr. 8, 2014). Accordingly, this

factor weighs in defendants’ favor because plaintiff has acted in bad faith by repeatedly failing to

comply with this court’s orders.

The second factor to consider, for both Rule 37(b)(2) and Rule 41(b), is “the amount of

prejudice that noncompliance caused the adversary.” O’Briant, 2020 WL 3791958, at *7. “The

purpose of pre-trial discovery is for a litigating attorney to obtain information from the opposing

party, information which in many cases is not otherwise available.” Adams v. Md. Mgmt. Co.,

No. WDQ-11-2408, 2013 WL 142074, at *2 (D. Md. Jan. 10, 2013). Here, plaintiff’s refusal to

produce any discovery severely prejudiced defendants, as defendants were unable to prepare

their defense to plaintiff’s claims. For example, defendants were unable to validate or determine

the extent of plaintiff’s alleged disability of rheumatoid arthritis or to gather any information to

9

determine the accuracy of plaintiff’s claims that his medical condition prevented him from being

vaccinated. Plaintiff also did not identify any witnesses, health care providers, or other persons

with knowledge of the facts of this case, so defendants were unable to depose anyone or properly

prepare their defense. “[I]t cannot be disputed that [p]laintiff’s failure to answer even a single

interrogatory precludes [d]efendant[s] from preparing a defense.” Robertson v. Deco Sec., Inc.,

No. WDQ-09-3093, 2010 WL 3781951, at *5 (D. Md. Sept. 22, 2010). Additionally, plaintiff

refused to sign medical releases so that defendants could subpoena plaintiff’s relevant medical

records from plaintiff’s health care providers. (ECF No. 87-1 at 11). Other courts have

dismissed cases in which plaintiffs refused to sign medical releases for relevant discovery. See

Gomez v. Dillon Co., Inc., No. REB-09-676, 2010 WL 1644610, at *2 (D. Colo. Apr. 22, 2010)

(dismissing plaintiff’s case as a sanction because plaintiff “refused to provide waivers and

releases concerning her medical records”), Jennings v. Sallie Mae, Inc., No. WTL-07-1008, 2009

WL 10709913, at *1 (S.D. Ind. May 6, 2009) (dismissing plaintiff’s case because plaintiff

“repeatedly refused to execute an Authorization for Release of Medical Records”). Plaintiff’s

repeated refusal to provide discovery or sign a medical release has severely prejudiced

defendants in this case.

Third, the court considers the need to deter noncompliance similar to plaintiff’s

noncompliance in this case. “[I]n light of the [c]ourt’s warning to [plaintiff] that [his] failure to

comply with its order might result in dismissal, a less severe sanction could ‘place[] the

credibility of the court in doubt and invite[] abuse.’” Woodbury v. Victory Van Lines, No. TDC-

16-2532, 2019 WL 2135649, at *6 (D. Md. May 16, 2019) (quoting Ballard v. Carlson, 882 F.2d

93, 95-96 (4th Cir. 1989)). Plaintiff has failed to adhere to the court’s repeated orders to produce

10

discovery, including orders in which the court clearly advised plaintiff that he faced dismissal of

this case if he did not comply. (ECF Nos. 79, 84). Obviously, similar behavior from other

litigants must be deterred. Additionally, this court’s final order stated that it was giving plaintiff

“one last opportunity” to respond to defendants’ discovery request and sign releases for medical

records. (ECF No. 84). “When the [c]ourt has issued an explicit warning that continued failure

to comply could result in dismissal, this is a critical fact which supports the [c]ourt’s discretion

to dismiss.” Legacy Inv. & Mgmt., LLC v. Susquehanna Bank, No. WDQ-12-2877, 2013 WL

5423919, at *7 (D. Md. Sept. 26, 2013). To allow plaintiff’s case to continue without sanctions,

or with lesser sanctions, would serve to render meaningless this court’s orders.

The fourth consideration, for both Rule 37(b)(2) and Rule 41(b), is whether less drastic

sanctions would be effective. In this case, because of plaintiff’s complete disregard of the

court’s orders in addition to plaintiff’s steadfast resistance to answering defendants’ discovery

requests and to providing a medical release, no sanctions short of dismissal would be effective.

The court has already afforded plaintiff four opportunities and over eight months to respond to

discovery and to comply with the court’s orders. Plaintiff, therefore, “has brought the case to a

halt through a failure to participate in discovery.” Ferguson v. Prince George’s Cnty., Md., No.

TDC-14-3613, 2018 WL 1169083, at *4 (D. Md. Mar. 6, 2018). Additionally, because plaintiff

has not produced any discovery, allowing the case to proceed would be “pointless” as plaintiff

“would be prevented from introducing . . . evidence at trial.” Williams v. Montgomery Cnty.,

Md., No. PX-16-3204, 2018 WL 2087396, at *4 (D. Md. May 4, 2018). “To allow otherwise

would condone trial by ambush.” Id. Therefore, considering the four factors related to Rule

11

37(b)(2), dismissing this action as a sanction for plaintiff’s refusal to participate in discovery is

appropriate.

Regarding Rule 41(b), two factors remain for the court to consider: “the plaintiff's degree

of personal responsibility” and “the presence of a drawn out history of deliberately proceeding in

a dilatory fashion.” O’Briant, 2020 WL 3791958, at *7 (quoting Attkisson v. Holder, 925 F.3d

606, 625 (4th Cir. 2019)). With regard to plaintiff’s personal responsibility, while plaintiff is pro

se, “self-represented litigants ‘as well as other litigants are subject to the time requirements and

respect for court orders without which effective judicial administration would be impossible.’”

Id. at *8 (quoting Ballard, 992 F.2d at 96). Therefore, plaintiff’s pro se status does not absolve

him of personal responsibility. Additionally, plaintiff was ordered multiple times to comply with

this court’s orders and was warned that his failure to comply could result in dismissal of this

case. It was solely plaintiff’s personal responsibility to comply with the court’s orders and

respond to defendants’ discovery requests, and he alone failed to do so.

With regard to plaintiff’s “history of deliberately proceeding in a dilatory fashion,” over

the course of many months, and many orders, plaintiff failed to produce a single document or

answer a single interrogatory. Accordingly, this factor also weighs in defendants’ favor. In sum,

defendants’ request to dismiss this case as a sanction for plaintiff’s repeated failure to comply

with this court’s orders and produce discovery is appropriate pursuant to Rule 37(b)(2) and Rule

41(b). Therefore, defendants’ Motion for Sanctions (ECF No. 87) is granted.

III. CROSS-MOTIONS FOR SUMMARY JUDGMENT

In the alternative, defendants maintain that summary judgment is appropriate “because

there is no evidence in the record supporting [plaintiff’s] claims.” (ECF No. 87-1 at 16-33).

12

Plaintiff, instead of providing a response to defendants’ Motion for Summary Judgment, filed a

cross-Motion for Summary Judgment. (ECF No. 95). As discussed below, defendants’ Motion

for Summary Judgment (ECF No. 87) will be granted and plaintiff’s Motion for Summary

Judgment (ECF No. 95) will be denied.

A. Standard of Review

Summary judgment is appropriate when “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). A genuine

dispute remains “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is

properly considered “material” only if it might affect the outcome of the case under the

governing law. Id. The party moving for summary judgment has the burden of demonstrating

the absence of any genuine issue of material fact. Fed. R. Civ. P. 56(a); Pulliam Inv. Co., Inc. v.

Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). On those issues for which the non-moving

party will have the burden of proof, however, it is his or her responsibility to oppose the motion

for summary judgment with affidavits or other admissible evidence specified in Federal Rule of

Civil Procedure 56. Fed. R. Civ. P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16

(4th Cir. 1993). If a party fails to make a showing sufficient to establish the existence of an

essential element on which that party will bear the burden of proof at trial, summary judgment is

proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

When reviewing a motion for summary judgment, the court does not evaluate whether the

evidence favors the moving or non-moving party, but considers whether a fair-minded jury could

return a verdict for the non-moving party on the evidence presented. Anderson, 477 U.S. at 252.

13

In undertaking this inquiry, the court views all facts and makes all reasonable inferences in the

light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The non-moving party, however, may not rest on its pleadings,

but must show that specific, material facts exist to create a genuine, triable issue. Celotex, 477

U.S. at 324. A “scintilla” of evidence in favor of the non-moving party, however, is insufficient

to prevent an award of summary judgment. Anderson, 477 U.S. at 252. Further, “mere

speculation” by the non-moving party or the “building of one inference upon another” cannot

create a genuine issue of material fact. Cox v. Cnty. of Prince William, 249 F.3d 295, 299-300

(4th Cir. 2001). Summary judgment should be denied only where a court concludes that a

reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 252.

B. Discussion

In his amended Complaint, plaintiff asserts the following claims against defendants

pursuant to the ADA and the Rehabilitation Act: 1) Counts I and III: disability discrimination

due to actual and/or perceived disability and/or record of impairment; and 2) Counts II and IV:

disability discrimination due to failure to accommodate. (ECF No. 2). Defendants, in their

Motion for Summary Judgment, argue that summary judgment is appropriate for defendants on

all counts primarily due to plaintiff’s lack of evidence. (ECF No. 87-1 at 16-33). Plaintiff

responded with a cross-Motion for Summary Judgment in which he provides his own narrative of

the events that transpired and led him to filing these claims. (ECF No. 95). Additionally,

plaintiff argues that “[t]his case is a clear violation of ADA law. There was clear documentation

of my disability on file but they choice [sic] to discriminate and retaliate against me because they

14

believed they were right. Everyone involved had a duty of care to know the rules for which they

were enforcing but clearly didn’t. They acted arbitrarily and capriciously.” (Id. at 7-8).

Pursuant to Title II of the ADA, “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 subject to discrimination by any such entity.” 42

U.S.C. § 12132. Similarly, the Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability in the United States . . . 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).

The McDonnell Douglas framework used for Title VII claims is utilized to analyze plaintiff’s

ADA and Rehabilitation Act claims. Figueroa v. Geithner, 711 F. Supp. 2d 562, 572 (D. Md.

2010) (“Rehabilitation Act claims are analyzed under the framework[] originally formulated for

Title VII claims, announced in McDonnell Douglas v. Green.”), A Helping Hand, LLC v.

Baltimore Cnty., MD, 515 F.3d 356, 362 (D. Md. 2008) (“[B]ecause the ADA ‘echoes and

expressly refers to Title VII, and because the two statutes have the same purpose,’ courts

confronted with ADA claims have also frequently turned to precedent under Title VII.”). Under

this framework, plaintiff must first demonstrate a prima facie case: (1) that he has a disability;

(2) that he is otherwise qualified to receive the benefit of a service, program, or activity of a

public entity; and (3) that he was excluded from such a benefit, or was otherwise discriminated

against, on the basis of his disability. Davis v. Univ. of North Carolina, 263 F.3d 95, 99 (4th Cir.

2001), Baird v. Rose, 192 F.3d 462, 467-70 (4th Cir. 1999), Jardina v. Dept. of Public Safety and

15

Correctional Services, No. JKB-16-1255, 2019 WL 1745995, at *3 (D. Md. Apr. 17, 2019).7

Next, if plaintiff successfully establishes this prima facie case, a burden-shifting approach is

applied. Defendants must offer a non-discriminatory explanation for their actions, and then

plaintiff must rebut defendants’ explanation as pretextual for discrimination. Vannoy v. Fed.

Reserve Bank of Richmond, 827 F.2d 296, 304 (4th Cir. 2016). The court will first evaluate the

elements of plaintiff’s prima facie case followed by the burden-shifting approach.

1. Prima Facie Case

Regarding the first element of his prima facie case, plaintiff can demonstrate he has a

disability if he: “(1) has a physical or mental impairment that substantially limits one or more of

[plaintiff’s] major life activities; (2) has a record of such an impairment; or (3) is regarded as

having such an impairment.” Davis, 263 F.3d at 99 (citing 42 U.S.C. § 12102(2), 29 U.S.C. §

705(20)(B)). Defendants argue that plaintiff “has not produced any admissible evidence

establishing any of these conditions.” (ECF No. 87-1 at 17). Plaintiff provided no evidence of

his disability during the discovery process. In plaintiff’s Motion, he attaches a page from what

appears to be a Social Security disability opinion regarding his disability, and states that it was

on file with defendant FSU. (ECF No. 95 at 1, ECF No. 95-4). “[U]nsworn reports are

inadmissible on summary judgment unless accompanied by affidavits or depositions swearing to

their contents and conclusions.” Edens v. Kennedy, 112 F. App’x 870, 879 (4th Cir. 2004). This

unauthenticated, unsworn, single page out of what appears to be a multi-page document does not

7 A plaintiff seeking recovery under the Rehabilitation Act must also “demonstrate that the

[public entity] at issue receives federal funding.” Paulone v. City of Frederick, 787 F. Supp. 2d

360, 371 (D. Md. 2011). The undersigned need not address whether defendants received federal

funding, as there is no genuine issue of material fact regarding the remaining elements of

plaintiff's Rehabilitation Act claim.

16

adequately support that plaintiff has a disability. Additionally, “[p]laintiff’s own personal

medical opinions are incompetent, speculative evidence and are simply not admissible on

summary judgment.” Ballard v. NC Dept. of Public Safety, No. FDW-13-175, 2015 WL

5062214, at *10 (W.D.N.C. Aug. 27, 2015).

Similarly, even if plaintiff argued that defendants were aware of plaintiff’s rheumatoid

arthritis diagnosis or plaintiff’s adverse reactions to vaccinations, mere awareness does not

generate a factual issue as to whether defendants regarded plaintiff as disabled. See Haulbrook

v. Michelin North America, 252 F.3d 696, 703 (4th Cir. 2001) (“The fact that an employer is

aware of an employee’s impairment, without more, is ‘insufficient to demonstrate . . . that the

employer regarded the employee as disabled . . . .”), Herzog v. Loyola College in Maryland, Inc.,

No. RDB-07-2416, 2009 WL 3271246, at *8 (D. Md. Oct. 9, 2009) (“The mere fact that

[defendants] were aware of [plaintiff’s] ADHD is insufficient to demonstrate . . . that they

regarded him as disabled . . . .”). Accordingly, plaintiff has failed to generate a factual dispute as

to whether he has a disability. While plaintiff may have a disability, plaintiff has not adduced

admissible evidence to support that he has a disability.

As for the second element, plaintiff must show that he is otherwise qualified to receive

the benefit of a service, program, or activity of a public entity. Davis, 263 F.3d at 99. “To

determine whether a plaintiff has satisfied this burden, a court must decide whether he has

presented sufficient evidence to show (1) that he could satisfy the essential eligibility

requirements of the program, i.e., those requirements that bear more than a marginal relationship

to the [program] at issue, and (2) if not, whether any reasonable accommodation by the

17

[defendants] would enable the plaintiff to meet these requirements.” Halpern v. Wake Forest

Univ. Health Sciences, 669 F.3d 454, 462 (4th Cir. 2012).

In this case, defendants argue that their immunization policy is an essential eligibility

requirement because of the public health necessity to prevent the spread of serious

communicable diseases such as measles, mumps, and rubella, and to ensure protection against

severe infections such as tetanus and diphtheria. (ECF No. 87-1 at 24-25). Approximately “1 in

5 unvaccinated people in the U.S. who get measles [are] hospitalized.” (ECF No. 87-13 at 5).

For tetanus, “1 to 2 in 10 cases are fatal.” (Id. at 22). Regarding unvaccinated individuals who

get diphtheria, “[w]ithout treatment, up to half of patients can die,” and “with treatment, about 1

in 10 patients . . . die.” (Id. at 24). Based on the Centers for Disease Control (“CDC”)

recommendation that everyone receive an MMR vaccination once and receive a tetanus and

diphtheria (“Tdap”) vaccine once every ten years, defendants used their professional judgment to

mandate vaccinations and/or immunization records for these diseases and infections. (ECF No.

18-3 ¶ 5-6). “In determining whether an educational institution’s eligibility requirement is

essential . . . we accord a measure of deference to the school’s professional judgment.” Class v.

Towson Univ., 806 F.3d 236, 246 (4th Cir. 2015). Additionally, this court has found that

mandatory immunization and vaccination requirements, as well as steps to prevent the spread of

communicable diseases, “constitute[] a compelling interest.” Workman v. Mingo Cnty. Bd. of

Educ., 419 F. App’x 348, 353 (4th Cir. 2011); see also Antietam Battlefield KOA v. Hogan, 461

F. Supp. 3d 214, 237 (D. Md. 2020) (finding that “[s]lowing the spread of COVID-19 is a

compelling government interest”). Therefore, this court finds that defendants’ immunization

policy is an essential eligibility requirement of defendants’ program.

18

Because the immunization policy is an essential eligibility requirement, plaintiff must

show either that he could satisfy this requirement or, if not, whether any reasonable

accommodation by defendants would enable him to meet this requirement. Halpern, 669 F.3d at

462. Defendants maintain that plaintiff has failed to meet his burden to generate a factual

dispute as to whether he could satisfy this requirement because he did not provide documentation

that he was unable to obtain a Tdap vaccination, he did not provide admissible evidence

regarding his MMR or Tdap vaccination records, and he refused to take an MMR antibody titer

test. (ECF No. 87-1 at 22-27). Specifically with regard to plaintiff’s Tdap vaccination, plaintiff

admitted he had a Tdap vaccination in 2011 but refused to provide any discovery to prove this or

to sign a medical release so that defendants could subpoena these records. (ECF No. 87-1 at 22).

“[F]ailure to provide such documentation constitutes a failure to participate in this investigatory

process that bars [defendants’] liability for failure to accommodate.” Rice v. HAR-CO Credit

Union, No. RDB-13-3368, 2014 WL 4686669, at *4 (D. Md. Sept. 17, 2014) (stating that this

court has previously interpreted ADA regulations to permit employers to request documentation

about an employee’s disability from an employee in order to “determine the appropriate

reasonable accommodation”). Accordingly, plaintiff has not offered evidence sufficient to create

a factual dispute that he could satisfy the essential eligibility requirements of the program.

The question then becomes whether plaintiff has offered sufficient evidence to show that

a “reasonable accommodation by the [defendants] would enable the plaintiff to meet these

requirements.” Halpern, 669 F.3d at 462. Plaintiff has failed to do so. Here, defendants offered

multiple reasonable accommodations – they indicated that plaintiff could obtain MMR antibody

titer test instead of providing proof of vaccination for measles, mumps, and rubella. (ECF No.

19

18-1 at 2-3). Defendants also offered plaintiff the option to sign a religious exemption waiver or

a conscientious exemption waiver for all the required vaccinations. (ECF No. 18-1 at 4).

Plaintiff refused to accept any of these reasonable accommodations, because they were

“invasive” and compromised his principles. (Id.) Plaintiff argues that defendants should have

allowed him to take online classes as a reasonable accommodation. Defendants are not required,

however, to provide “the best” accommodation, or plaintiff’s preferred accommodation. Walter

v. United Airlines, Inc., No. 99-2622, 2000 WL 1587489, at *5 (4th Cir. Oct. 25, 2000) (citing

Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000)). In this court’s previous

opinion regarding defendants’ Motion to Dismiss, the undersigned noted that factual disputes

existed regarding whether plaintiff could receive non-live vaccines, such as the Tdap vaccine,

and whether documentation of plaintiff’s previous Tdap vaccination existed. (ECF No. 32 at

18). Since the court’s opinion was issued, plaintiff failed to produce any admissible evidence

regarding these critical questions. The only evidence of record is that defendants provided

plaintiff with several reasonable accommodations that would enable him to meet the

immunization requirement. Plaintiff declined to accept those reasonable accommodations.

Plaintiff has failed to generate any material factual disputes to indicate that defendants’

reasonable accommodations would not have enabled plaintiff to meet the essential eligibility

requirements. Consequently, plaintiff has failed to meet his burden to establish the second

element of a prima facie case.

Even if plaintiff had met the first two requirements of a prima facie case, he has failed to

establish the third element, that he was excluded from the benefit of a service, program, or

activity of a public entity, or was otherwise discriminated against, on the basis of his disability.

20

Davis, 263 F.3d at 99. “The Fourth Circuit has recognized ‘three distinct grounds for relief [for

ADA and Rehabilitation Act claims]: (1) intentional discrimination or disparate treatment; (2)

disparate impact; and (3) failure to make reasonable accommodations.’” Innes v. Bd. of Regents

of the Univ. Sys. of Md., 29 F. Supp. 3d 566, 577-78 (D. Md. 2014) (quoting A Helping Hand,

LLC, 515 F.3d at 362). Plaintiff asserts both intentional discrimination and failure to make

reasonable accommodations as grounds for relief in his amended Complaint. (ECF No. 2 at 11-

15).

Defendants argue that plaintiff cannot establish that he was excluded from FSU on the

basis of his disability because FSU’s “objectives and policies were implemented based on CDC

recommendations for disease control.” (ECF No. 18-1 at 10 n.4). The only evidence of

intentional discrimination that plaintiff provides is his own self-serving Motion for Summary

Judgment in which he recites the facts from his perspective. (ECF No. 95). “[A] party's ‘self-

serving opinion . . . cannot, absent objective corroboration, defeat summary judgment.” CTB,

Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020) (quoting Williams v. Giant Food Inc.,

370 F.3d 423, 433 (4th Cir. 2004)) (citing authority). While plaintiff does attach some

unauthenticated and generally unspecific exhibits (see ECF Nos. 95-1 through 16), these were

not produced to defendants during discovery and, therefore, cannot be used as evidence by

plaintiff in this procedural posture. “[U]nsworn, unauthenticated documents cannot be

considered on a motion for summary judgment. To be admissible at the summary judgment

stage, documents must be authenticated by and attached to an affidavit that meets the

requirements of [Federal Rule of Civil Procedure] 56(e) – that the documents be admissible in

evidence.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 536 (D. Md. 2007) (quoting

21

Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)). Because

plaintiff’s exhibits are unsworn and unauthenticated, they are not admissible.8 Accordingly,

plaintiff has failed to generate a factual dispute that defendants excluded him from FSU on the

basis of his disability.

Defendants also argue that they did not exclude plaintiff on the basis of his disability due

to a failure to make reasonable accommodations. Plaintiff must “demonstrate that

[d]efendant[s’] offered accommodation was unreasonable.” Nelson-Rogers v. Kaiser

Permanente, No. GJH-17-3326, 2020 WL 917067, at *7 (D. Md. Feb. 25, 2020). As discussed

above, plaintiff has failed to demonstrate that defendants’ multiple accommodations were

unreasonable in this case. Accordingly, plaintiff has failed to generate factual disputes as to any

of the elements of his prima facie case. Therefore, summary judgment for defendants is

appropriate on all counts.

2. Burden-Shifting Approach

Even if the court were to find that plaintiff established a prima facie case for his claims,

the McDonnell Douglas framework additionally requires the application of the burden-shifting

approach. Defendants must state a legitimate, non-discriminatory reason for their action and

plaintiff must show that defendants’ reason is pretextual for discrimination. In order “to prove

by a preponderance of the evidence that the proffered reasons [for defendants’ exclusion of

plaintiff] were pretextual,” Wright v. Southwest Airlines, 319 F. App’x 232, 233 (4th Cir. 2009),

8 Plaintiff’s exhibits consist of website pages from sources such as the Centers for Disease

Control (see, e.g., ECF Nos. 95-2, 95-3, 95-9, 95-28, 95-30), emails between plaintiff and

various FSU staff members (see, e.g., ECF Nos. 95-16, 95-21, 95-25, 95-36), and other

unidentified documents (see, e.g., ECF Nos. 95-4, 95-15, 95-23), among others. The court has

reviewed plaintiff’s exhibits and concludes that even if the exhibits were presented in admissible

form, they do not generate genuine issues of material fact.

22

plaintiff must show “both that [defendant’s] reason was false, and that discrimination was the

real reason for the challenged conduct,” or, in other words, that plaintiff would not have been

excluded from FSU “but for [defendant’s] retaliatory animus.” Fry v. Rand Construction Corp.,

964 F.3d 239, 246 (4th Cir. 2020) (quoting Foster v. University of Maryland-Eastern Shore, 787

F.3d 243, 252 (4th Cir. 2015)). The “court must . . . evaluate whether the plaintiff has

demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions

in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence.” White v. W.R. Winslow Mem’l Home, Inc., No.

99-1781, 2000 WL 346947, at *2 (4th Cir. Mar. 15, 2000).

As discussed herein, defendants provide a legitimate, non-discriminatory reason for why

plaintiff was not able to register for classes and ultimately left defendant FSU - because he did

not comply with the immunization policy. It is then plaintiff’s burden to generate a factual

dispute as to whether defendants’ reason is false and that defendants’ real reason for preventing

him from registering for classes was discriminatory. Once more, plaintiff does not provide

evidence besides his “self-serving opinion,” which “cannot, absent objective corroboration,

defeat summary judgment.” CTB, Inc., 954 F.3d at 658 (quoting Williams, 370 F.3d at 433).

Plaintiff has failed to provide any evidence to prove either that defendants’ legitimate, non-

discriminatory reason was false or that discrimination was defendants’ true motivation.

Accordingly, plaintiff has failed to meet his burden and generate a factual dispute as to whether

defendants’ legitimate non-discriminatory reason was false and whether discrimination was the

real reason for defendants’ actions. Therefore, summary judgment for defendants on Counts I,

II, III, and IV is appropriate.

23

IV. CONCLUSION

For the foregoing reasons, defendants’ Motion for Sanctions or, in the Alternative, for

Summary Judgment (ECF No. 87) is GRANTED and plaintiff’s Motion for Summary Judgment

(ECF No. 95) is DENIED. A separate order will be issued.

September 15, 2021 ______/s/______________________

Beth P. Gesner

Chief United States Magistrate Judge

24