# Mallon v. Frostburg State University

> District Court, D. Maryland · September 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10205856

## Case

- **Court:** District Court, D. Maryland
- **Decided:** September 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
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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

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[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.

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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.

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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.

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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

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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.
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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10205856. Public record. Not legal advice.