BONE v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN BONE, et al., )

)

Plaintiffs, )

)

v. ) 1:18cv994

)

UNIVERSITY OF NORTH CAROLINA )

HEALTH CARE SYSTEM, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendant UNCHCS’s Motion

for Judgment on the Pleadings” (Docket Entry 68) (the “Motion”).

For the reasons that follow, the Court should deny the Motion.

BACKGROUND

In December 2018, John Bone (“Bone”), Timothy Miles (“Miles”),

the National Federation of the Blind, Inc. (the “NFB”), and

Disability Rights North Carolina (individually, “Disability Rights

NC,” and collectively, the “Plaintiffs”) initiated “this action

against the University of North Carolina Health Care System (d/b/a

UNC Health Care) (‘UNC’) and Nash [Hospitals, Inc.] (‘Nash’), for

denying blind individuals an equal opportunity to access their

health care information, in violation of Titles II and III of the

Americans with Disabilities Act of 1990 ([the] ‘ADA’), 42 U.S.C.

§§ 12131-12134, 12181-12189, Section 504 of the Rehabilitation Act

(‘Section 504’), 29 U.S.C. § 794(a), and Section 1557 of the

Patient Protection and Affordable Care Act (‘Section 1557’), 42

U.S.C. § 18116” (Docket Entry 1, ¶ 1; accord Docket Entry 18 (the

“Amended Complaint”), ¶ 1).1 Nash and UNC (collectively, the

“Defendants”) moved to dismiss the Amended Complaint pursuant to

Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil

Procedure (the “Rules”). (See Docket Entries 20, 28.) The

undersigned recommended denying UNC’s dismissal motion and granting

in part and denying in part Nash’s dismissal motion, advising that

the Court dismiss, for lack of standing, “the Title III claim and

all claims asserted by [NFB and Disability Rights NC] against

[Nash],” but allow “all other claims [against Nash] to proceed.”

(Docket Entry 44 (the “Recommendation”) at 51.)2

All parties objected to the Recommendation. (See Docket

Entries 49-51.) As relevant here, UNC contended that the

Recommendation errantly addressed UNC’s Rule 12(b)(6) challenge to

Plaintiffs’ ADA and Section 504 claims, in which UNC had argued

that “[t]he Amended Complaint fails to articulate sufficient

allegations of discriminatory intent as to [UNC]’s actions toward

the individual [P]laintiffs” (Docket Entry 21 at 19) and that

1 In January 2019, Plaintiffs amended their complaint to

correct Nash’s name. (Compare Docket Entry 1, ¶ 1, with Docket

Entry 18, ¶ 1.)

2 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination.

2

“Plaintiffs have not alleged sufficient facts to permit an

inference that the[ir] disability . . . was a ‘motivating factor’

[in UNC’s alleged conduct]” (id. at 21; see also id. (asserting

“that Plaintiffs cannot infer that UNC[] was motivated by

Plaintiff’s [sic] disabilities in taking the actions or failing to

act as alleged by [P]laintiffs”)). (See Docket Entry 51 (the

“Objection”) at 15-24.) In regard to UNC’s Rule 12(b)(6)

challenge, the Recommendation first states, inter alia:

Title II of the ADA provides that “no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be

denied the benefits of the services, programs, or

activities of a public entity, or be subject[ed] to

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

Similarly, Section 504 of the Rehabilitation Act declares

that “[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a).

To make out a claim under Title II or Section 504,[3]

Plaintiffs must prove “(1) they have a disability;

(2) they are otherwise qualified to receive the benefits

of a public service, program, or activity; and (3) they

were denied the benefits of such service, program, or

activity, or otherwise discriminated against, on the

basis of their disability.” National Fed’n of the Blind

v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016). The two

claims “differ only with respect to the third element,

3 “As [UNC] has observed, ‘“[c]laims under the ADA’s Title II

and [Section 504 of] the Rehabilitation Act can be combined for

analytical purposes because the analysis is substantially the

same.”’ (Docket Entry 24 at 17 (quoting Seremeth v. Board of Cty.

Comm’rs Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012)).)”

(Docket Entry 44 at 40 n.8 (second and third sets of brackets in

original).)

3

causation.” Halpern v. Wake Forest Univ. Health Scis.,

669 F.3d 454, 461 (4th Cir. 2012). In that regard, “[t]Jo

succeed on a claim under [Section 504], the plaintiff[s]

must establish [they were] excluded solely by reason of

[their] disability; [Title II of] the ADA requires only

that the disability was a motivating cause of the

exclusion.” Id. at 461-62 (internal quotations omitted).

“A successful plaintiff in a suit under Title II of

the ADA or [Section] 504 . . . is generally entitled to

a full panoply of legal and equitable remedies.” Paulone

v. City of Frederick, 787 F. Supp. 2d 360, 373 (D. Md.

2011). However, “compensatory damages are available only

upon proof of intentional discrimination or disparate

treatment, rather than mere disparate impact.” Id.

“While the Fourth Circuit has not specifically addressed

the standard required for proving intentional

discrimination, the majority of circuits to have decided

the issue have adopted a deliberate indifference

standard, as have some district courts within the Fourth

Circuit.” Smith v. N.c. Dep’t of Safety, No. 1:18CV914,

2019 WL 3798457, at *3 (M.D.N.C. Aug. 13, 2019)

(unpublished) (Schroeder, C.J.) (citing Green v. Central

Midlands Reg’l Transit Auth., No. 3:17CV2667, 2019 WL

1765867, at *6 n.15, *9-10, *9 n.24 (D.S.C. Apr. 22,

2019) (unpublished), and Godbey v. Iredell Mem’1 Hosp.

Inc., No. 5:12CV4, 2013 WL 4494708, at *4-6 (W.D.N.C.

Aug. 19, 2013) (unpublished)). In order to prove

deliberate indifference, “a plaintiff must show that the

defendant knew that harm to a federally protected right

was substantially likely and failed to act on that

likelihood.” Silva v. Baptist Health S. Fla., Inc., 856

F.3d 824, 831 (11th Cir. 2017).

Here, [UNC] disputes that it “denied [Plaintiffs]

the benefits of [a] service program or activity ... on

the basis of their disability,” Lamone, 813 F.3d at 503.

(See Docket Entry 24 at 18-20.) In this regard, [UNC]

first argues that Plaintiffs have failed to “articulate

sufficient allegations of discriminatory intent as to

[UNC’s] actions toward the individual [P]laintiffs.”

(Id. at 18.) In particular, [UNC] contests the

sufficiency of the allegations that Plaintiff NFB’s

counsel “informed [UNC] that it was violating Title II .

. . by failing to provide accessible formats for blind

persons generally, not specifically, and that [UNC

‘Jdeclined [an] offer to work collaboratively, on a

systemic basis to fix the problem and continued to

violate the law.’” (Id. (quoting Docket Entry 18, ¶

41).) . . . .

The Amended Complaint alleges the following

concerning the claims under Title II and Section 504:

[UNC’s] refusal to communicate with blind patients

in an equally effective manner, through the

provision of alternative formats, was done

intentionally or with deliberate indifference to

the protected rights of [Bone, Miles, other NFB

members, and Disability Rights NC] constituents.

For example, even after counsel for Plaintiffs

wrote to Defendants, informed them that they were

violating Title II of the ADA [and Section 504],

among other laws, by failing to provide accessible

formats for blind patients, and offered to work

collaboratively to fix the problem, Defendants

declined Plaintiffs’ offer and continued to violate

the law. [Plaintiff] Miles was unable to obtain

large print documents during two of his latest

visits to [UNC] medical practices and facilities in

October 2018, after [UNC] had been notified of this

issue by Plaintiffs’ counsel.

(Docket Entry 18, ¶ 41; accord id., ¶ 72.)

The Amended Complaint thus describes two incidents

when (despite prior communications from Plaintiffs’

counsel) [UNC] failed to provide Plaintiff Miles with

documents in an accessible format. (See id., ¶¶ 41, 72.)

. . . . [Accordingly], Plaintiffs have adequately alleged

that their counsel reached out to [UNC] about its failure

to provide blind patients with accessible documents in

order to avoid “harm to a federally protected right,”

Silva, 856 F.3d at 831, but that [UNC] “failed to act on

that likelihood,” id.[4]

4 “Even absent sufficient allegations to show discriminatory

intent (via deliberate indifference) by [UNC], injunctive relief

would remain available. See Silva, 856 F.3d at 831 (stating that

‘proving the failure to provide a means of effective communication,

on its own, permits [] injunctive relief’). As Plaintiffs have

requested injunctive relief under Title II and Section 504, those

claims would proceed regardless of the sufficiency of the

allegations of discriminatory intent.” (Docket Entry 44 at 43 n.9

(continued...)

5

Next, [UNC] argues that Plaintiffs “have not alleged

sufficient facts to permit an inference that their

disability . . . was a motivating factor.” (Docket Entry

24 at 20.) However, [UNC] has not explained how

Plaintiffs inadequately pled facts to permit such an

inference. (See id.) Moreover, in response, Plaintiffs

countered that [“UNC]’s argument conflates causation with

intent.” (Docket Entry 26 at 17.) [UNC] did not address

that counter-argument in its reply brief. (See Docket

Entry 27 at 1-15.) “[P]roving the failure to provide a

means of effective communication, on its own, permits []

injunctive relief.” Silva, 856 F.3d at 831. Plaintiffs

have adequately alleged that [UNC] “failed to communicate

effectively by denying [Plaintiffs] the auxiliary aid of

alternative formats” (Docket Entry 26 at 17).

(See Docket Entry 18, ¶¶ 41, 72.)

(Docket Entry 44 at 40-44 (certain ellipses and brackets in

original).)

As to UNC’s Rule 12(b)(6) challenge to Plaintiffs’ Section

1557 claim, the Recommendation states:

Section 1557 of the Affordable Care Act [(at times,

the “ACA”)], “entitled, ‘Nondiscrimination,’ provides

that ‘an individual shall not, on the ground[s]

prohibited under . . . [S]ection 504 . . . be excluded

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

subjected to discrimination under, any health program or

activity.’” Basta[ v. Novant Health Inc., No. 3:19cv64],

2019 WL 3310098[,] at *6 [(W.D.N.C. July 23, 2019)]

(quoting 42 U.S.C. § 18116) (emphasis omitted). Here,

[UNC] simply argues that its earlier challenge to the

sufficiency of Plaintiffs’ Title II allegations also

defeats Plaintiffs’ Section 1557 claim, because “[t]he

causation element for disability discrimination under the

Rehabilitation [A]ct is stricter than that under the

ADA,” and because “Plaintiffs assert their [Section 1557]

claim in part on the basis of discrimination due to

disability.” (Docket Entry 24 at 21.) However, as

4(...continued)

(final set of brackets in original).)

6

discussed above, Plaintiffs have sufficiently alleged

facts to support Title II and Section 504 claims.

(Docket Entry 44 at 46 (ellipses and certain brackets in

original).)

As noted, UNC objected to the Recommendation, contending that

it “failed to abide the requirement in this circuit since Gentry v.

E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 236 (4th Cir.

2016) that a ‘district court correctly applie[s] a “but-for”

causation standard’ to ADA claims.” (Docket Entry 51 at 15-16

(brackets in original).) The Objection continued:

UNC[] recognizes that this Court, in a recent ruling

on the Magistrate Judge’s [r]ecommendation in a different

case brought under the ADA and [Rehabilitation Act],

stated in a footnote that “[t]hough the [the United

States Court of Appeals for the] Fourth Circuit’s use of

the [less-demanding] ‘motivating cause’ standard in ADA

cases has been criticized, it continues to be the

controlling law in this circuit.” Smith, 1:18CV914, 2019

WL 3798457 at *2 n.1. However, because this statement

constitutes dicta on an issue which was not briefed, and

because it did not contend with (or at least did not

mention) Gentry, it need not be deemed controlling.

In Gentry, the Fourth Circuit concluded that “[t]he

Supreme Court’s analysis in Gross [v. FBL Financial

Services, Inc., 557 U.S. 167 (2009)] dictates” that the

phrase “discriminate . . . on the basis of” in Title I of

the ADA, like the phrase “discriminate . . . because of”

which had been at issue in Gross, “calls for a ‘but-for’

causation standard.” [Gentry, 816 F.3d] at 234-35.

More critical as relates to the present Title II

case, the Gentry court in reaching its conclusion both

(1) explicitly stated that under Supreme Court

jurisprudence the standard which is relevant to Title II

— “by reason of” — also “connote[s] ‘but-for’ causation”

as opposed to “motivating factor” causation, id. at 236

(citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 350-51 (2013)), and (2) explicitly abrogated its

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holding in a prior Title II opinion that the “‘motivating

factor’ standard should apply [to] Title II” — and took

pains in doing so to note that the earlier case had been

decided “without the benefit of Gross[,” id.] at 235 n.3

(abrogating Baird ex rel. Baird v. Rose, 192 F.3d 462

(4th Cir. 1999)).

Under the correct “but-for” standard, the Amended

Complaint fails to state colorable Title II claims

because Plaintiffs in no way allege that but for their

disabilities, they would have received the benefit they

understandably sought — more efficient provision of

alternative formats of standardized hospital documents.

(Docket Entry 51 at 16-17 (emphasis, ellipses, and certain brackets

in original) (parallel citations omitted).)

The Objection further maintained, inter alia, that the Amended

Complaint describes “bureaucracy, plain and simple.” (Id. at 19

(emphasis in original).) According to UNC:

[T]he ADA’s laudable purpose is to “address[]

discrimination against individuals with disabilities” in

order to achieve “the elimination of discrimination,” 42

U.S.C. § 12101(b)(1) — not the elimination of the

ineluctable imperfections inherent in all human

institutions. Plaintiffs do not allege that non-disabled

individuals seeking, out of convenience, to receive large

print documents have received or would receive them

without the same administrative lapses or delays, born of

nothing more than the ordinary bureaucratic rigidity

which will tend to confront any non-routine matter. They

have not alleged, to illustrate further, that patients

with Limited English Proficiency, to whom UNC[] also has

legal obligations, have not frequently encountered

similar frustrations.

(Docket Entry 51 at 20 (emphasis and second set of brackets in

original).)

Accordingly, the Objection contended, “[b]ecause the Amended

Complaint fails to satisfy circuit precedent which requires a Title

8

II plaintiff to plausibly allege that the state or local government

defendant would have conducted itself differently toward him ‘but

for’ his disability, it does not state a claim and must be

dismissed.” (Id. at 23.) Moreover, “[i]f, as just argued, Gentry

compels that the phrase ‘by reason of such disability’ in Title II

be understood to denote a ‘but-for’ standard of causation,” the

Objection asserted, “then a fortiori the same must be true of the

phrase ‘solely by reason of her or his disability’ that appears in

Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and, by

cross-reference, in Section 1557 of the ACA.” (Docket Entry 51 at

23.) “Thus,” in UNC’s view (as stated in the Objection), “the same

deficiencies which cause the Amended Complaint to fall short of

stating a claim for relief under Title II must also cause it to

fall short of stating claims under the [Rehabilitation Act] and

ACA. These claims, too, should be dismissed.” (Id. at 23-24.)

On March 5, 2020, “find[ing] that the [parties’] objections do

not alter the substance of the Recommendation,” the Court (per

Chief United States District Judge Thomas D. Schroeder) reached a

determination “in accord with” the Recommendation, which it

adopted. (Docket Entry 57 (the “Order”) at 1; see id. at 3.) The

Court therefore (1) denied UNC’s dismissal motion, (2) granted, for

lack of standing, Nash’s dismissal motion as to “the Title III

claim and all claims asserted by [NFB and Disability Rights NC],”

and (3) otherwise denied Nash’s dismissal motion, holding that “all

9

other claims [against Nash] will be allowed to proceed.” (Id. at

3.)

On May 15, 2020, the parties submitted their joint discovery

proposal, which recommended that discovery commence on June 30,

2020. (See Docket Entry 66 at 1.) The Court (per the undersigned)

adopted this discovery plan. (See Text Order dated May 22, 2020.)

However, the following month UNC filed the Motion (see Docket Entry

68 at 4) and simultaneously moved to stay its discovery obligations

pending resolution of the Motion (see Docket Entry 70) (the “Stay

Motion”) The Motion rests on the theory that the Recommendation

and Order conflict with Gentry and Comcast Corp. v. National Ass’n

of African American-Owned Media, U.S. 140 S. Ct. 1009

(2020), issued March 23, 2020, which (per UNC) impose a “but for”

causation requirement for Plaintiffs’ claims. (See Docket Entry 68

at 2-3.) In addition, the Motion contends that the Amended

Complaint fails to allege “that UNC[] would have responded

differently toward blind individuals’ requests for timely

alternative-format documents ‘but for’ their disability,”

necessitating dismissal of Plaintiffs’ claims. (Docket Entry 68 at

3-4.) Because, according to UNC, Comcast “obliges the Court to

5 Nash similarly filed a motion for judgment on the pleadings

and moved to stay its discovery obligations pending resolution of

such motion. (See Docket Entries 72, 74.) Thereafter, Nash and

the relevant Plaintiffs settled all claims against Nash, prompting

Nash’s dismissal from this litigation (see Docket Entries 96, 97)

and mooting that motion for judgment on the pleadings.

10

enter judgment on the pleadings in [its] favor,” UNC also urged the

Court to stay its discovery obligations pending entry of such

judgment. (Docket Entry 70 at 1.)

Plaintiffs opposed both the Motion and the Stay Motion,

asserting, inter alia, that the Motion improperly “attempt[s] to

relitigate arguments the Court rejected at the motion-to-dismiss

stage” (Docket Entry 78 at 5) and that “Comcast adds nothing new to

the intent analysis in disability discrimination cases” (id. at 5-

6). (See generally Docket Entries 78, 79.) Thereafter, the Court

(per the undersigned) denied the Stay Motion, explaining:

[The Stay Motion] ask[s] the Court to stay discovery,

pending resolution of [the Motion]. In denying [the Stay

Motion], the Court generally agrees with Plaintiffs that

[the Motion] re-hash[es] arguments already addressed in

[the] Order adopting [the] Recommendation. The Court

further rejects [UNC’s] contention that the decision in

[Comcast,] ___ U.S. ___, 140 S. Ct. 1009 (2020), clearly

invalidates the analysis in [the] Order and [the]

Recommendation. That decision involves a different

statute than the ones at issue in this case and,

particularly given the distinctive requirements of Title

II of the [ADA], the Court does not find a sufficient

basis to conclude that resolution of [the Motion] should

occur before discovery proceeds.

(Text Order dated Aug. 27, 2020.)

DISCUSSION

I. Rule 12(c) Standards

As with a Rule 12(b)(6) motion, “[a] Rule 12(c) motion tests

only the sufficiency of the complaint and does not resolve the

merits of the plaintiff’s claims or any disputes of fact.” Massey

v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (internal quotation

11

marks omitted) (brackets in original). Moreover, the same

standards apply to a Rule 12(b)(6) and a Rule 12(c) motion.

See id. Accordingly, although the “Rules do not flatly bar a

defendant from asserting a Rule 12(c) motion for judgment on the

pleadings simply because he or she previously asserted a Rule

12(b)(6) motion to dismiss,” a Rule 12(c) motion does not provide

“an opportunity to re-litigate issues raised and decided in a

motion to dismiss.” Burke v. Nationstar Mortg. LLC, No. 3:14cv837,

2016 WL 4231705, at *5 (E.D. Va. Aug. 9, 2016) (internal quotation

marks omitted) (emphasis in original); see also Alexander v. City

of Greensboro, No. 1:09cv293, 2011 WL 3360644, at *4 (M.D.N.C. Aug.

3, 2011) (explaining that, in resolving Rule 12(c) motion, “the

court will not reconsider issues that it addressed fully at the

Rule 12(b)(6) stage”).

In evaluating a Rule 12(c) motion, the Court considers only

the pleadings, (1) taking all factual allegations in the relevant

complaint as true, (2) taking all factual allegations in the answer

“as true only where and to the extent they have not been denied or

do not conflict with the [relevant] complaint,” and (3) drawing all

reasonable inferences in favor of the nonmoving party. Alexander

v. City of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C. 2011)

(internal quotation marks omitted); accord Massey, 759 F.3d at 353

(explaining that, in analyzing Rule 12(c) motions, courts “accept

all well-pleaded allegations of [a] complaint as true and draw all

12

reasonable factual inferences in [a plaintiff’s] favor”). To

survive either a Rule 12(b)(6) or a Rule 12(c) motion, a complaint

must only “state[] a plausible claim for relief.” Massey, 759 F.3d

at 353 (internal quotation marks omitted). To qualify as

plausible, a claim must include sufficient factual content to

support a reasonable inference of the defendant’s liability for the

alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Nevertheless, the complaint need not contain detailed factual

recitations, as long as it provides “the defendant fair notice of

what the claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation

marks and ellipsis omitted). “At bottom, determining whether a

complaint states . . . a plausible claim for relief . . . will ‘be

a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.’” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556

U.S. at 679).

II. Relevant Legal Background

As the United States Supreme Court has explained regarding the

creation of the Rehabilitation Act:

Discrimination against the handicapped was perceived

by Congress to be most often the product, not of

invidious animus, but rather of thoughtlessness and

indifference — of benign neglect. Thus, Representative

Vanik, introducing the predecessor to § 504 in the House,

described the treatment of the handicapped as one of the

country’s “shameful oversights,” which caused the

handicapped to live among society “shunted aside, hidden,

13

and ignored.” 117 Cong. Rec. 45974 (1971). Similarly,

Senator Humphrey, who introduced a companion measure in

the Senate, asserted that “we can no longer tolerate the

invisibility of the handicapped in America . . . .” 118

Cong. Rec. 525-526 (1972). And Senator Cranston, the

Acting Chairman of the Subcommittee that drafted § 504,

described the [Rehabilitation] Act as a response to

“previous societal neglect.” 119 Cong. Rec. 5880, 5883

(1973). See also 118 Cong. Rec. 526 (1972) (statement of

cosponsor Sen. Percy) (describing the legislation leading

to the 1973 [Rehabilitation] Act as a national commitment

to eliminate the “glaring neglect” of the handicapped).

Federal agencies and commentators on the plight of the

handicapped similarly have found that discrimination

against the handicapped is primarily the result of

apathetic attitudes rather than affirmative animus.

In addition, much of the conduct that Congress

sought to alter in passing the Rehabilitation Act would

be difficult if not impossible to reach were the

[Rehabilitation] Act construed to proscribe only conduct

fueled by a discriminatory intent. For example,

elimination of architectural barriers was one of the

central aims of the [Rehabilitation] Act, see, e.g.,

S. Rep. No. 93-318, p. 4 (1973), U.S. Code Cong. & Admin.

News 1973, pp. 2076, 2080, yet such barriers were clearly

not erected with the aim or intent of excluding the

handicapped. Similarly, Senator Williams, the chairman

of the Labor and Public Welfare Committee that reported

out § 504, asserted that the handicapped were the victims

of “[d]iscrimination in access to public transportation”

and “[d]iscrimination because they do not have the

simplest forms of special educational and rehabilitation

services they need . . . .” 118 Cong. Rec. 3320 (1972).

And Senator Humphrey, again in introducing the proposal

that later became § 504, listed, among the instances of

discrimination that the section would prohibit, the use

of “transportation and architectural barriers,” the

“discriminatory effect of job qualification . . .

procedures,” and the denial of “special educational

assistance” for handicapped children. Id., at 525-526.

These statements would ring hollow if the resulting

legislation could not rectify the harms resulting from

action that discriminated by effect as well as by design.

Alexander v. Choate, 469 U.S. 287, 295-97 (1985) (ellipses and

certain brackets in original) (footnotes omitted).

14

In turn:

Congress enacted the [ADA] in 1990 “to provide a

clear and comprehensive national mandate for the

elimination of discrimination against individuals with

disabilities.” Pub. L. No. 101-336, § 2(b)(1), 1990

U.S.C.C.A.N. (104 Stat.) 327, 329 (codified at 42 U.S.C.

§ 12101(b)(1)). The [ADA] prohibits discrimination

against persons with disabilities in three major areas of

public life: employment, under Title I, 42 U.S.C.

§§ 12111-12117; public services, under Title II, 42

U.S.C. §§ 12131-12165; and public accommodations, under

Title III, 42 U.S.C. §§ 12182-12189. See Tennessee v.

Lane, 541 U.S. 509, 516-17 (2004).

******

Title II creates a remedy for “any person alleging

discrimination on the basis of disability” and provides

that the “remedies, procedures, and rights” available

under Title II are the “remedies, procedures, and rights

set forth in section 794a of [the Rehabilitation Act].”

Id. § 12133. Section 794a of the Rehabilitation Act, in

turn, provides that the available “remedies, procedures,

and rights” are those set forth in Title VII of the Civil

Rights Act. 29 U.S.C. § 794a(a)(1) (2000).

Pursuant to congressional instruction, see 42 U.S.C.

§ 12134(a), the Attorney General has issued regulations

implementing Title II of the ADA. See 28 C.F.R. pt. 35

(2007). These regulations provide further guidance

interpreting many of the provisions of Title II.

Although the Supreme Court has yet to decide whether the

regulations are entitled to the full deference afforded

under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844

(1984), the [Supreme] Court has counseled that the views

expressed by the Department of Justice in the

implementing regulations “warrant respect.” Olmstead v.

L.C., 527 U.S. 581, 597-98 (1999).

In addition to the provisions of the statute and the

implementing regulations, Congress has directed courts to

construe the ADA to grant at least as much protection as

the Rehabilitation Act and its implementing regulations.

42 U.S.C. § 12201(a); see also Bragdon v. Abbott, 524

U.S. 624, 631-32 (1998). Moreover, because the ADA

“echoes and expressly refers to Title VII, and because

the two statutes have the same purpose,” courts

15

confronted with ADA claims have also frequently turned to

precedent under Title VII. See, e.g., Fox v. Gen. Motors

Corp., 247 F.3d 169, 176 (4th Cir. 2001) (collecting

cases). Thus, courts have construed Title II of the ADA

to allow a plaintiff to pursue three distinct grounds for

relief: (1) intentional discrimination or disparate

treatment; (2) disparate impact; and (3) failure to make

reasonable accommodations. See, e.g., Wis. Cmty.

Servs.[, Inc. v. City of Milwaukee], 465 F.3d [737,] 753

[(7th Cir. 2006)]; Tsombanidis[ v. West Haven Fire

Dep’t], 352 F.3d [565,] 573 [(2d Cir. 2003)]; see also

Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003)

(citing Title VII cases in discussing disparate treatment

and disparate impact claims under Title I of the ADA).

A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 361-62 (4th

Cir. 2008) (certain brackets and ellipses in original) (parallel

citations omitted).

Taken together, Title II, Section 504, and Section 1557

(collectively, the “Acts”) prohibit the exclusion of individuals

with disabilities from the services, activities, and programs,

including health programs, of entities receiving public funding.

More specifically, Title II of the ADA provides that “no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. Section 504 of the Rehabilitation Act similarly declares

that “[n]o otherwise qualified individual with a disability . . .

shall, solely by reason of her or his disability, be excluded from

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

discrimination under any program or activity receiving Federal

16

financial assistance.” 29 U.S.C. § 794(a). Further, pursuant to

Section 1557, “an individual shall not, on the ground[s] prohibited

under . . . [S]ection [504], be excluded from participation in, be

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

any health program or activity, any part of which is receiving

Federal financial assistance.” 42 U.S.C. § 18116; see also

Lockwood v. Our Lady of the Lake Hosp., Inc., Civ. No. 17-509, 2018

WL 3451514, at *1 (M.D. La. July 17, 2018) (finding that analysis

of Section 504 claim would “apply equally” to Section 1557 claim

because “Section 1557 . . . incorporates [Section 504]’s definition

of disability and provides the same protections for people with

disabilities as [Section 504]”).

Notably, the Acts “impose[] an affirmative obligation to make

‘reasonable modifications to rules, policies, or practices, the

removal of architectural, communication, or transportation

barriers, or the provision of auxiliary aids and services’ to

enable disabled persons to receive services or participate in

programs or activities,” Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 488 (4th Cir. 2005) (discussing

Title II) (quoting 42 U.S.C. § 12131(2)). See also, e.g., Pierce

v. District of Columbia, 128 F. Supp. 3d 250, 266 (D.D.C. 2015)

(“[T]he express prohibitions against disability-based

discrimination in Section 504 and Title II include an affirmative

obligation to make benefits, services, and programs accessible to

17

disabled people.” (emphasis in original)); Lockwood, 2018 WL

3451514, at *1 (explaining that Section 1557 “provides the same

protections for people with disabilities as [Section 504]”); 45

C.F.R. § 92.105 (requiring entities under Section 1557 to “make

reasonable modifications to [their] policies, practices, or

procedures when such modifications are necessary to avoid

discrimination on the basis of disability,” and specifying that,

“[f]or the purposes of this section, the term ‘reasonable

modifications’ shall be interpreted in a manner consistent with the

term as set forth in the regulation promulgated under Title II of

the [ADA]”).

As concerns communication, regulations under the ACA require

relevant entities to “take appropriate steps to ensure that

communications with individuals with disabilities are as effective

as communications with others in such programs or activities, in

accordance with the standards found at 28 [C.F.R. §§] 35.160

through 35.164.” 45 C.F.R. § 92.102. The first of those cross-

referenced ADA regulations obliges “[a] public entity [to] furnish

appropriate auxiliary aids and services where necessary to afford

individuals with disabilities . . . an equal opportunity to

participate in, and enjoy the benefits of, a service, program, or

activity of a public entity.” 28 C.F.R. § 35.160(b)(1). Moreover,

although recognizing that “[t]he type of auxiliary aid or service

necessary to ensure effective communication will vary in accordance

18

with the method of communication used by the individual; the

nature, length, and complexity of the communication involved; and

the context in which the communication is taking place,” the

regulations specify that:

In determining what types of auxiliary aids and

services are necessary, a public entity shall give

primary consideration to the requests of

individuals with disabilities. In order to be

effective, auxiliary aids and services must be

provided in accessible formats, in a timely manner,

and in such a way as to protect the privacy and

independence of the individual with a disability.

28 C.F.R. § 35.160(b)(2).

Regulations regarding the Rehabilitation Act similarly oblige

recipients of federal funds to “[e]nsure that communications with

their applicants, employees and beneficiaries are effectively

conveyed to those having impaired vision and hearing.” 28 C.F.R.

§ 42.503(e). They further require such recipients “that employ[]

fifteen or more persons [to] provide appropriate auxiliary aids to

qualified handicapped persons with impaired sensory, manual, or

speaking skills where a refusal to make such provision would

discriminatorily impair or exclude the participation of such

persons in a program or activity receiving Federal financial

assistance.” 28 C.F.R. § 42.503(f).6 “Such auxiliary aids may

6 In addition, “[d]epartmental officials may require

recipients employing fewer than fifteen persons to provide

auxiliary aids when this would not significantly impair the ability

of the recipient to provide its benefits or services.” Id.

19

include brailled and taped material, qualified interpreters,

readers, and telephonic devices.” Id.

III. Analysis

In its Motion, UNC maintains that Gentry and Comcast impose a

“but for” causation requirement for Plaintiffs’ claims that

precludes liability unless Plaintiffs allege “that UNC[] would have

responded differently toward blind individuals’ requests for timely

alternative-format documents ‘but for’ their disability” (Docket

Entry 68 at 3-4). (See id. at 2-4; see also, e.g., Docket Entry 69

at 7 (asserting that Plaintiffs’ claims “fail as a matter of law”

because they do not “allege that UNC[] would have responded

differently to requests from sighted individuals for alternative

format documents such as large print”).) This contention lacks

merit.

As a preliminary matter, UNC’s Rule 12(c) arguments largely

repackage its rejected Rule 12(b) (6) arguments. (Compare, e.g.,

Docket Entry 51 at 15-17, 23 (arguing that Fourth Circuit in Gentry

imposed but-for causation standard for ADA claims and that,

“[b]ecause the Amended Complaint fails to satisfy circuit precedent

which requires a Title II plaintiff to plausibly allege that the

state or local government defendant would have conducted itself

differently toward him ‘but for’ his disability, it does not state

a claim and must be dismissed,” id. at 23), with Docket Entry 68 at

2-4 (asserting that “‘but for’” standard applies and that Amended

20

Complaint “fails to state a[] claim[]” because it “nowhere alleges,

implicitly or explicitly, that UNC[] would have responded

differently toward blind individuals’ requests for timely

alternative-format documents ‘but for’ their disability,” id. at 3-

4).) This circumstance alone justifies denial of the Motion. See,

e.g., Alexander, 2011 WL 3360644, at *4 (declining, in resolving

Rule 12(c) motion, to “reconsider issues that [the court] addressed

fully at the Rule 12(b) (6) stage”). In addition, UNC’s Rule 12(c)

contentions fail on their merits.

To begin, in its Objection and its Motion, UNC argues that the

Fourth Circuit in Gentry “explicitly abrogated its holding” in

Baird “that the ‘“motivating factor” standard should apply [to]

Title II.’” (Docket Entry 51 at 17 (quoting Gentry, 816 F.3d at

235 n.3); accord Docket Entry 83 at 3.) Relying exclusively on

Gentry, UNC further asserts:

The text of the ADA, and by extension the R[ehabilitation

Act] and ACA, “calls for a ‘but-for’ causation standard”

—- not only in its prohibition against employers

discriminating “on the basis of” disability (Title I),

but also in its prohibition against public entities and

recipients of federal funds excluding individuals from

their programs “by reason of” disability (Title II).

(Docket Entry 69 at 13 (citing Gentry, 816 F.3d at 235).)

Contrary to UNC’s contentions, Gentry did not abrogate Baird.

See Gentry, 816 F.3d at 235 n.3. Rather, recognizing that Baird,

“an ADA Title II case[,] . . . . [wa]ls not controlling,” id., in

Gentry, which involved a claim under Title I of the ADA, see id. at

21

233, the Fourth Circuit merely “decline[d the plaintiff’s request]

to extend Baird’s analysis to thle Gentry] case,” id. at 235 n.3.

Notably, since Gentry, the Fourth Circuit has continued to apply

Baird’s motivating factor standard to Title II claims. For

instance, the Fourth Circuit explained in 2018:

The ADA’s Title II and the Rehabilitation Act “differ

only with respect to the third element, causation.”

Halpern[,] 669 F.3d [at] 461[.] “To succeed on a claim under

the Rehabilitation Act, the plaintiff must establish he was

excluded ‘solely by reason of’ his disability; the ADA

requires only that the disability was ‘a motivating cause’ of

the exclusion.” Id. at 461-62 (quoting Baird[,] 192 F.3d [at

468-69]).

Wicomico Nursing Home v. Padilla, 910 F.3d 739, 750 (4th Cir.

2018). Accordingly, as this Court (per Chief Judge Schroeder) has

previously recognized, Baird’s motivating cause standard “continues

to be the controlling law in this circuit.” Smith, 2019 WL

3798457, at *2 n.1.

Furthermore, Lamone, a Title II decision that the Fourth

Circuit issued contemporaneously with Gentry,’ undermines UNC’s

broader argument that, “[b]ecause the Amended Complaint fails to

allege that UNC[] would have responded differently to requests from

sighted individuals for alternative format documents such as large

print, all the claims asserted fail as a matter of law” (Docket

Entry 69 at 7; accord, e.g., id. at 12-13, 18, 20-21). In Lamone,

7 The judge who wrote Lamone also wrote Gentry (argued in

December 2015, less than two months after Lamone, and decided in

March 2016, less than one month after Lamone). See Gentry, 816

F.3d at 228, 231; Lamone, 813 F.3d at 494, 498.

22

various disabled Maryland voters and the NFB (collectively, the

“Maryland plaintiffs”) sued Maryland election officials regarding

Maryland’s absentee voting procedures, which required individuals

to mark by hand hardcopy absentee ballots, which they could obtain

via “mail, fax, or by downloading and printing [the ballot] from a

website.” Lamone, 813 F.3d at 498. By 2012, Maryland had

developed an early version of an “online ballot marking tool,” id.

(internal quotation marks omitted), which enabled voters who

obtained their ballots online to “mark their choices electronically

and then print out a completed ballot,” id. at 499. “Importantly

for individuals with certain disabilities, the ability to use the

tool on their own computers may enable them to use the personal

assistive devices that they ordinarily use to interface with the

computer, such as a refreshable Braille display, to mark their

ballot choices.” Id.

Maryland used “[a]n early, non-accessible version of” this

online ballot marking tool during the 2012 primary elections. Id.

After that election, questions arose regarding the necessity of

certifying the tool under Maryland law, with the Maryland Attorney

General opining that such certification remained unnecessary. Id.

Nevertheless, due to lingering certification concerns, the Maryland

State Board of Elections (the “Maryland Board”) made the tool

available only to overseas and military absentee voters in the 2012

23

general election. See id. at 500. “Use of the tool in the 2012

primary and general elections was apparently uneventful.” Id.

Following the 2012 elections, the Maryland General Assembly

passed a law requiring the Maryland “Board to certify any online

ballot marking tool prior to use by voters.” Id. The

certification process required at least four of the five members of

the Maryland Board to vote for certification. see id. The

Maryland Board continued improving the online absentee ballot

marking tool, particularly increasing its accessibility for

individuals with disabilities, and obtained independent audits

attesting to the tool’s security. See id. However, apparently due

to certain members’ lingering security concerns, the Maryland Board

failed to certify the tool, thereby preventing its use in

Maryland’s elections. See id. at 500-01.

In 2014, the Maryland plaintiffs sued, seeking a declaratory

judgment that Maryland’s absentee voting process violated the

Rehabilitation Act and the ADA, “as well as an injunction requiring

state election officials to make the online ballot marking tool

available for use starting with the 2014 general election.” Id. at

500. After a bench trial, the district court found that the

Maryland “plaintiffs had established that they had been denied

meaningful access to absentee voting in Maryland in violation of

Title II of the ADA and Section 504 of the Rehabilitation Act” and

entered a declaratory judgment to that effect. Id. at 502. The

24

district court further determined that the Maryland “plaintiffs’

proposed remedy, access to the online ballot marking tool, was a

reasonable modification that did not fundamentally alter Maryland’s

voting program.” Id. Accordingly, “the district court entered a

permanent injunction prohibiting [the defendant state election

officials] from violating [the Maryland] plaintiffs’ rights under

the ADA and the Rehabilitation Act and requiring [the] defendants

to make the online ballot marking tool available to [the Maryland]

plaintiffs for the 2014 general election.” Id.

On appeal, the Fourth Circuit affirmed those findings.

Characterizing the Maryland plaintiffs’ claims as proceeding under

“the theory that [the] defendants have failed to make reasonable

accommodations that would afford disabled individuals meaningful

access to Maryland’s absentee voting program,” id. at 503 n.5,°® the

Fourth Circuit noted that the parties disputed only the third

element of the Maryland plaintiffs’ Title II claims, namely

“whether [they] were denied the benefits of a public service,

8 In so doing, the Fourth Circuit rejected the defendants’

contention that the Maryland plaintiffs presented a “disparate

impact” claim under Title II, noting that although “some sort of

disparity will necessarily be present in cases of discrimination,

that does not mean that all discrimination cases are legally

evaluated as ‘disparate impact’ cases.” Id.; see also id.

(explaining that “Title II allows plaintiffs to pursue three

distinct grounds for relief: (1) intentional discrimination or

disparate treatment; (2) disparate impact; and (3) failure to make

reasonable accommodations”). As in Lamone, Plaintiffs proceed

under the “reasonable accommodations” theory of Title II, a

“distinct ground[] for relief,” Lamone, 813 F.3d at 503 n.5. (See,

e.g., Docket Entry 18, 31-42.)

25

program, or activity on the basis of their disability,” id. at

503.9 The Fourth Circuit then concluded, based on the record,

“that Maryland’s absentee voting program does not provide disabled

individuals an ‘opportunity to participate . . . equal to that

afforded others,’” namely the ability to “mark their absentee

ballots without assistance.” Id. at 506 (certain internal

quotation marks omitted) (ellipsis in original) (quoting 28 C.F.R.

§ 35.130(b)(1)(ii)). The “sharp disparity” between non-disabled

voters and disabled voters under Maryland’s absentee program

“ma[d]e[] obvious that [the] defendants have provided ‘an aid,

benefit, or service [to disabled individuals] that is not as

effective in affording equal opportunity to obtain the same result,

to gain the same benefit, or to reach the same level of achievement

as that provided to others.’” Id. (final set of brackets in

original) (quoting 28 C.F.R. § 35.130(b)(1)(iii)). Emphasizing

that “[t]he ADA requires more,” id., the Fourth Circuit “affirm[ed]

the district court’s conclusion that[,] by effectively requiring

disabled individuals to rely on the assistance of others to vote

absentee, [the] defendants have not provided [the Maryland]

plaintiffs with meaningful access to Maryland’s absentee voting

program,” id. at 507.

9 UNC likewise challenges only the third element of

Plaintiffs’ Title II claims. (See Docket Entries 68, 69, 83.)

26

The Fourth Circuit also affirmed the district court’s findings

that the online marking tool constituted a reasonable modification

that did not fundamentally alter Maryland’s voting program. See

id. at 507-10. Accordingly, the Fourth Circuit affirmed the

district court’s issuance of an injunction requiring the defendants

to make the online ballot marking tool available to the Maryland

plaintiffs. See id. at 508, 510. Of particular relevance here, in

affirming the district court, the Fourth Circuit noted:

We recognize that some of the standard analytic

language used in evaluating ADA claims — “failure to make

reasonable accommodations”; “denial of meaningful access”

— carries with it certain negative connotations. We

would be remiss in not highlighting that the record is

devoid of any evidence that the defendants acted with

discriminatory animus in implementing Maryland’s absentee

voting program. Indeed, we recognize that Maryland’s

decision to provide “no excuse” absentee voting to all

its citizens provides a benefit that is far from

universal across the United States.

However, the ADA and the Rehabilitation Act do more

than simply provide a remedy for intentional

discrimination. They reflect broad legislative consensus

that making the promises of the Constitution a reality

for individuals with disabilities may require even

well-intentioned public entities to make certain

reasonable accommodations. Our conclusions here are not

driven by concern that [the] defendants are manipulating

the election apparatus intentionally to discriminate

against individuals with disabilities; our conclusions

simply flow from the basic promise of equality in public

services that animates the ADA.

Id. at 510 (emphasis added).

Here, UNC asserts that Plaintiffs’ claims fall short

“[b]ecause the Amended Complaint fails to allege that UNC[] would

have responded differently to requests from sighted individuals for

27

alternative format documents such as large print.” (Docket Entry

69 at 7; see also, e.g., Docket Entry 83 at 1 (asserting that

“Plaintiffs have failed to allege that [UNC’s] conduct was in any

way motivated by Plaintiffs’ disabilities” (emphasis in

original)).) As Lamone makes clear, this argument misconstrues

UNC’s legal obligations under the Acts. In Lamone, certification

requirements and security concerns, not the Maryland plaintiffs’

disabilities, motivated the Maryland election officials’ failure to

provide the online ballot marking tool for use — by any Maryland

voters — after the 2012 elections. Thus, UNC’s arguments that

Plaintiffs’ claims fail (1) because they do not assert that UNC

would provide accessible documentation to non-disabled individuals

who requested such material (see, e.g., Docket Entry 69 at 20-21)

and/or (2) because the Amended Complaint identifies non-

discriminatory reasons for UNC’s failure to provide accessible

decuments, including that UNC’s billing system purportedly could

not produce such documents (see, e.g., id. at 21), miss the mark.

Nor does Comcast alter that analysis. Comcast involved a

claim under 42 U.S.C. § 1981, “which guarantees, among other

things, ‘[a]ll persons . . . the same right . . . to make and

enforce contracts . . . as is enjoyed by white citizens.’”

Comcast, _—-U.S. at, 140 S. Ct. at 1013 (ellipses and brackets

in original). Originating as part of the Civil Rights Act of 1866,

id., _-+U.S. at _—, 104 S. Ct. at 1015, and “designed to eradicate

28

blatant deprivations of civil rights, clearly fashioned with the

purpose of oppressing the former slaves,” General Bldg. Contractors

Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 388 (1982), Section 1981

“can be violated only by purposeful discrimination,” id. at 391.

In Comcast, the plaintiff “argue[d] that a § 1981 plaintiff only

bears the burden of showing that race was a ‘motivating factor’ in

the defendant’s challenged decision, not a but-for cause of its

injury,” at least at the pleading stage of the litigation.

Comcast, U.S. at, 140 S. Ct. at 1014. In so arguing, the

plaintiff “ask[ed the Supreme Court] to draw on, and then innovate

with, the ‘motivating factor’ causation test found in Title VII of

the Civil Rights Act of 1964.” Id., U.S. at, 140 S. Ct. at

1017. Looking to Section 1981’s “text, its history, and [relevant]

precedent,” id., U.S. at _, 140 S. Ct. at 1014, the Supreme

Court rejected that argument, reversing the lower court’s

conclusion that “[a] § 1981 plaintiff doesn’t have to point to

facts plausibly showing that racial animus was a ‘but for’ cause of

the defendant’s conduct,” id., U.S. at 140 S. Ct. at 1013.

see id., U.S. at -_, 140 S. Ct. at 1014-19.

Unlike Section 1981, designed to remedy “blatant deprivations

of civil rights” that “oppress[ed] the former slaves,” General

Bldg. Contractors, 458 U.S. at 388, shortly after the Civil War,

the Rehabilitation Act and ADA — modern statutes passed more than

100 years after the Civil Rights Act of 1866 — target

29

discrimination that usually arises not from “invidious animus, but

rather [from] thoughtlessness and indifference - [from] benign

neglect,” Choate, 469 U.S. at 295, or, stated differently,

discrimination that primarily results from “apathetic attitudes

rather than affirmative animus,” id. at 296. Moreover, unlike

Section 1981, see Comcast, U.S. at _, 140 S. Ct. at 1017-18,

“the ADA echoes and expressly refers to Title VII, and... the

two statutes have the same purpose,” A Helping Hand, 515 F.3d at

362 (internal quotation marks omitted). Accordingly, courts have

“frequently turned to precedent under Title VII” to resolve ADA

claims. Id. Further, under binding circuit precedent, Title VII’s

“motivating factor” causation standard applies to Title II claims.

See Baird, 192 F.3d at 470 (“conclud[ing] that the causation

standards applicable in Title VII actions are applicable to

violations of [Title I1I]”). Thus, Comcast neither constitutes an

“analogous holding” (Docket Entry 68 at 3) nor “obliges the Court

to order complete judgment as a matter of law on the pleadings in

favor of UNC[]” (id. at 1).

In sum, UNC’s Rule 12(c) contentions lack merit. Moreover,

focused exclusively on its (previously rejected) argument for

applying a different causation standard, UNC offers nothing to

undermine this Court’s prior conclusion that, under applicable

standards, the Amended Complaint states viable Title II, Section

504, and ACA claims against UNC (see Docket Entry 44 at 50-51;

30

Docket Entry 57 at 1, 3). (See generally Docket Entries 68, 69,

83.) Accordingly, the Court should reject UNC’s request “to render

judgment on the pleadings in [its favor] on all counts asserted

against it in the Amended Complaint” (Docket Entry 68 at 4).

CONCLUSION

As the Court has already determined, Plaintiffs have alleged

plausible claims for relief under the Acts.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 68)

be denied.

This 4th day of February, 2021.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

31