# Frazier v. Pennsylvania State University

> District Court, M.D. Pennsylvania · May 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10411763

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 18, 2022
- **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 MIDDLE DISTRICT OF PENNSYLVANIA

AARON FRAZIER, No. 4:21-CV-00350

Plaintiff, (Chief Judge Brann)

v.

THE PENNSYLVANIA STATE
UNIVERSITY,

Defendant.

MEMORANDUM OPINION

MAY 18, 2022
I. BACKGROUND
On September 13, 2021, Aaron Frazier filed a Second Amended Complaint
against The Pennsylvania State University (“Penn State”). Frazier sued under the
Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), the
Pennsylvania Human Relations Act (“PHRA”), and the Pennsylvania Fair
Educational Opportunities Act (“PFEOA”).
On September 27, 2021, Penn State filed a motion to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is
now ripe for disposition; for the following reasons, it is denied in part and granted
in part. Further leave to amend is not granted. Penn State is ordered to file an
Answer.
II. DISCUSSION
A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a
complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which
relief can be granted.” A motion to dismiss “tests the legal sufficiency of a claim”1
and “streamlines litigation by dispensing with needless discovery and factfinding.”2

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive
issue of law.”3 This is true of any claim, “without regard to whether it is based on
an outlandish legal theory or on a close but ultimately unavailing one.”4

Following the Roberts Court’s “civil procedure revival,”5 the landmark
decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7 tightened
the standard that district courts must apply to 12(b)(6) motions.8 These cases
“retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced

it with a more exacting “plausibility” standard.9

1 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).
2 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
3 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
4 Id. at 327.
5 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313 (2012).
6 550 U.S. 544 (2007).
7 556 U.S. 662 (2009).
8 Id. at 670.
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”10 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”11 “Although the plausibility

standard does not impose a probability requirement, it does require a pleading to
show more than a sheer possibility that a defendant has acted unlawfully.”12
Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of [wrongdoing].”13

The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”14 No matter
the context, however, “[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”15
When disposing of a motion to dismiss, the Court “accept[s] as true all factual
allegations in the complaint and draw[s] all inferences from the facts alleged in the

light most favorable to [the plaintiff].”16 However, “the tenet that a court must accept

10 Id. at 678 (quoting Twombly, 550 U.S. at 570).
11 Id.
12 Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (cleaned up).
13 Twombly, 550 U.S. at 556.
14 Iqbal, 556 U.S. at 679.
15 Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotation marks omitted)).
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”17 “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.”18
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.19
B. Facts Alleged in the Second Amended Complaint
The facts alleged in the Second Amended Complaint, which I must accept as
true for the purposes of this motion, are as follows.
In the fall of 2017, Aaron Frazier began at Penn State Harrisburg’s Master’s
in Applied Clinical Psychology Program.20 Frazier suffered from major depressive
disorder and generalized anxiety disorder, including social anxiety.21 These

17 Iqbal, 556 U.S. at 678 (internal citations omitted).
18 Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.)
(“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a
motion to dismiss.”).
19 Connelly, 809 F.3d at 787 (internal quotation marks and citations omitted).
20 Doc. 18 at ¶ 7.
conditions prevented Frazier from engaging in schoolwork by affecting his
concentration, motivation, and persistence.22

After his grandfather died, Frazier requested extra time to complete a final
project in the spring of 2018.23 And the Program accommodated this request.24 Still,
Frazier continued to struggle with depression and anxiety, discussing these struggles
with Professor Erin Miller.25

That semester, Frazier enrolled in the Clinical Practicum course, which the
Program required to graduate.26 A Practicum site, T.W. Ponessa & Associates, hired
Frazier as an intern.27 There, Dr. Gene Nelson supervised Frazier.28

For the Practicum, Frazier needed child-abuse and criminal-record
clearances.29 But the Program did not notify Frazier about these clearance
requirements.30 When Nelson informed Frazier that he needed clearances on
January 2, 2019, Frazier in turn informed Drs. Winkeljohn Black and Brelsford.31

The same day, Winkeljohn Black advised Frazier to speak with Nelson and
find out what he needed to get back on track.32 The next day, Brelsford agreed that

22 Id. at ¶ 10.
23 Id. at ¶¶ 12–13.
24 Id. at ¶ 13.
25 Id. at ¶ 14.
26 Id. at ¶¶ 20–24.
27 Id. at ¶ 24.
28 Id. at ¶ 28.
29 Id. at ¶ 30.
30 Id. at ¶¶ 31, 35–36.
31 Id. at ¶ 37.
Frazier should contact Nelson and inform her if Nelson did not help him complete
his Practicum at T.W. Ponessa.33 That way, Brelsford would determine how Frazier

could complete his Practicum hours at another site.34 Brelsford also stated that
Frazier had eight weeks to complete the Practicum, after which Frazier would
receive a failing grade.35

Frazier did not complete the Practicum hours because he lacked clearances
and T.W. Ponessa’s client intakes decreased.36 So Nelson dismissed Frazier from
T.W. Ponessa on January 7, 2019.37 And Frazier received a deferred grade in
Practicum, which was customary for students who needed more than one semester

to complete Practicum hours.38
On January 11, 2019, Frazier’s father called and emailed Dr. Poyrazli, a head
professor for the Program, about Frazier’s resuming the Practicum.39 But Poyrazli

responded that she could not speak with Frazier’s father under the Family
Educational Rights and Privacy Act.40 So Frazier emailed Poyrazli with permission
to speak to his parents.41

33 Id. at ¶ 42.
34 Id.
35 Id. at ¶ 43.
36 Id. at ¶ 38.
37 Id. at ¶ 44.
38 Id. at ¶ 45.
39 Id. at ¶ 47.
40 Id.
On January 23, 3019, Frazier met with Disability Resources and completed
an assessment form outlining his struggles with depression and anxiety.42 And in

February 2019, Frazier’s psychiatrist completed a form verifying Frazier’s mental
illnesses and recommending various accommodations.43 Frazier submitted this form
to Disability Resources.44

On February 26, 2019, Frazier and his father met with Brelsford and Poyrazli
to discuss Practicum.45 When Frazier requested an extension through the end of
2019, Brelsford initially expressed skepticism.46 But Poyrazli offered to help find
Frazier a Practicum position.47 Brelsford also agreed to review the extension

process, stating that she would likely need additional documentation from Frazier
and would need to discuss Frazier’s situation with the graduate-school faculty.48
On March 19, 2019, Brelsford and Poyrazli met with Frazier again.49 Though

Frazier’s psychiatrist had recommended his parents’ presence in such meetings,
Penn State refused that accommodation for this meeting.50 During this dismissal
meeting, Brelsford and Poyrazli suggested speaking with the Registrar about a

42 Id. at ¶ 15.
43 Id. at ¶¶ 16–17.
44 Id. at ¶ 16.
45 Id. at ¶ 51.
46 Id. at ¶ 54.
47 Id. at ¶ 56.
48 Id. at ¶ 57.
49 Id. at ¶ 59.
medical withdrawal for the Fall 2018 semester or perhaps just for the Practicum
course itself.51

But when Frazier and his father asked, the Registrar indicated that this was
not an option.52 Instead, the Registrar recommended requesting a retroactive late
drop of the Practicum course.53 So Frazier requested this retroactive late drop the
next day, March 20, 2019.54

On April 18, 2019, Frazier met with Assistant Dean Peter B. Idowu to discuss
the retroactive late drop.55 Idowu did not see the justification for this retroactive late
drop and refused to draft a memo supporting Frazier’s request.56 Instead, Idowu

suggested seeking a medical withdrawal for the entire Fall 2018 semester, which
would result in a failing grade in the Practicum and expulsion from the Program.57
As Idowu instructed, Frazier requested a medical withdrawal for the Fall 2018
semester on May 14, 2019.58 The next day, Brelsford dismissed Frazier from the

program via a letter.59 Frazier appealed this dismissal twice.60 On September 23,
2019, Penn State denied Frazier’s final appeal.61

51 Id. at ¶ 65.
52 Id. at ¶ 67.
53 Id.
54 Id. at ¶ 68.
55 Id. at ¶ 69.
56 Id. at ¶¶ 70, 72.
57 Id. at ¶ 73.
58 Id. at ¶ 75.
59 Id. at ¶ 76.
60 Id. at ¶¶ 77, 90.
In March 2020, Frazier filed a complaint with the Pennsylvania Human
Relations Commission (“PHRC”).62 On or about June 10, 2021, Frazier received a

right-to-sue letter from the PHRC.63 Frazier had filed suit in this Court on February
25, 2021.64
C. Analysis

1. Abandonment
As a threshold matter, Penn State argues that Frazier has abandoned his RA
claim by failing to mention it in his response brief. But Frazier’s response brief
contends that he “sufficiently plead [sic]” and filed his RA claim “within the relevant

statutes of limitation.”65 Frazier’s brief also explains the statute of limitations for
his RA claim.66 Accordingly, Frazier has not abandoned his RA claim.
2. Timeliness
a. ADA/RHA

First, Penn State argues that Frazier’s ADA and RA claims are untimely.
“Although the statute of limitations is an affirmative defense, it may be raised in a
motion to dismiss where the plaintiff’s failure to comply with the limitations period
is apparent from the face of the pleadings.”67 “In evaluating the statute of limitations

62 Id. at ¶ 95.
63 Id. at ¶ 96.
64 Doc. 1.
65 Doc. 22 at 13.
66 Id. at 17.
on a motion to dismiss, a court is limited to the allegations of the complaint, the
exhibits attached to the complaint, and matters of public record.”68

“Because neither the ADA nor the Rehabilitation Act contains an express
limitation period, their statute of limitations is determined by looking to the
limitations period for the most analogous cause of action in the state in which it
sits.”69 “For [Frazier’s] claims under the ADA and the Rehabilitation Act, this is

Pennsylvania’s two-year limitations period for personal injury actions.”70
Accordingly, “[t]he statute of limitations for [Frazier’s] ADA and Rehabilitation Act
claims is two years.”71

Because Frazier first sued on February 25, 2021, Frazier’s “ADA and
Rehabilitation Act claims will be time-barred if they accrued before” February 25,
2019.72 “A cause of action accrues and the statute of limitations begins to run . . .

when the plaintiff knows or has reason to know of the injury that is the basis for the
action.”73 “In a discrimination case, the focus is on when the discriminatory act
occurs, not when the consequences of that act become painful.”74 That is, Frazier’s

68 Id.
69 Id.
70 Id.
71 Id.
72 Id. at 483.
73 Burkhart v. Widener Univ., Inc., 70 F. App’x 52, 53 (3d Cir. 2003).
claims accrued when Penn State “establishe[d] its official position and
communicate[d] that position by giving notice to” Frazier.75

Penn State argues that Frazier’s claims accrued on January 7, 2019, when Dr.
Gene Nelson dismissed him from T.W. Ponessa. But Penn State did not employ
Nelson.76 So it is not apparent from the face of the pleadings that Penn State

“establish[ed] its official position and communicate[ed] that position” through
Nelson, a third party.77
Penn State also analogizes this case to two others. Chardon v. Fernandez held
that plaintiffs’ cause of action accrued when “respondents were notified, when they

received their letters, that a final decision had been made to terminate their
appointments.”78 Similarly, Frank v. University of Toledo held “that the date of
initial notification of denial of accommodations was the date of accrual.”79 Chardon

and Frank therefore tied accrual to notification of termination and denial of
accommodations.
Here, Frazier alleges that in January 2019, Dr. Brelsford gave him eight weeks
to complete the Practicum, for which he received a deferred grade.80 Frazier also

alleges that Penn State denied him various accommodations on or after February 26,

75 Bailey v. United Airlines, 279 F.3d 194, 199 (3d Cir. 2002).
76 Doc. 21 at 10 (“In Fall 2018, Frazier was a participant in the required Practicum at a third-
party’s site supervised by Dr. Nelson, an employee of that third party.”).
77 Bailey, 279 F.3d at 199.
78 454 U.S. 6, 8 (1981).
79 621 F. Supp. 2d 475, 483 (N.D. Ohio 2007).
2019.81 These allegations permit the inference that Penn State notified Frazier of its
official decisions to dismiss him and deny him accommodations after February 25,

2019. Accordingly, the Court “cannot conclude at this stage” that Frazier’s ADA
and RA claims “are barred by the statute of limitations.”82
b. PHRA/PFEOA
Next, Penn State argues that Frazier’s PHRA and PFEOA claims are untimely.

“To bring suit under the PHRA, a plaintiff must first have filed an administrative
complaint with the PHRC within 180 days of the alleged act of discrimination.”83
The PFEOA also “requires a plaintiff to bring a complaint with the PHRC
within 180 days of the unfair educational practice at issue.”84 “The Pennsylvania

courts have strictly interpreted this requirement,” precluding judicial remedies for
plaintiffs who “fail[] to file a timely complaint with the PHRC.”85
Here, Frazier filed a complaint with the PHRC in March 2020.86 Within 180

days of that filing, Frazier alleges only one act: Penn State’s denying his final appeal
on September 23, 2019.87 But this denial of Frazier’s final appeal does not render
his PHRA and PFEOA claims timely.

81 Id. at 51–97.
82 Taylor v. Henderson, 632 F. App’x 70, 74 (3d Cir. 2015).
83 Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997) (citing 43 P.S. §§ 959(h),
962(c)).
84 Datto, 664 F. Supp. 2d at 497.
85 Woodson, 109 F.3d at 925.
86 Doc. 18 at ¶ 95.
Two cases explain why. In Delaware State College v. Ricks, the eponymous
college denied Columbus Ricks tenure.88 So Ricks appealed this decision through

an internal grievance committee.89 Eventually, the Board of Trustees denied Ricks’s
internal appeal.90
The Supreme Court of the United States held that Ricks’s internal “grievance,

or some other method of collateral review of an employment decision, [did] not toll
the running of the limitations periods.”91 Instead, “the filing limitations period . . .
commenced[] at the time the tenure decision was made and communicated to
Ricks.”92 Thus, the Supreme Court remanded to the Third Circuit “so that it may

reinstate the District Court’s order dismissing the complaint” as untimely.93
Though Ricks “dealt with Federal equal opportunity law,” Pennsylvania
courts have found it “convincing” for state-law claims too.94 For example, in Garlick

v. Lock Haven University, the Commonwealth Court of Pennsylvania held that
“similarly to Ricks . . ., we believe the alleged act of discrimination was Lock
Haven’s decision not to renew Garlick’s contract, not its termination of his
employment when his contract expired.”95 “Therefore, the trial court did not err in

88 449 U.S. 250, 252 (1980).
89 Id.
90 Id. at 254.
91 Id. at 261.
92 Id. at 258.
93 Id. at 262.
94 Garlick v. Lock Haven Univ., No. 540 C.D. 2008, 2008 WL 9405237, at *2 (Pa. Commw. Ct.
Dec. 9, 2008).
determining that Garlick failed to file his complaint with the PHRC within the
required time period.”96

As in Ricks and Garlick, the allegedly discriminatory acts here are Penn
State’s decisions to deny Frazier accommodations and dismiss him from the
Program. So the 180-day filing period commenced when Penn State communicated

these decisions to Frazier, not when Penn State denied Frazier’s final appeal.
Accordingly, Frazier’s failure to file a PHRC complaint within 180 days is apparent
from the face of the pleadings.97
Frazier counters that the “PHRC determined that the Complaint was timely

filed with respect to the September 23, 2019 dismissal.”98 But as I explained before,
“a court is limited to the allegations of the complaint, the exhibits attached to the
complaint, and matters of public record” “[i]n evaluating the statute of limitations
on a motion to dismiss.”99 And Frazier’s Second Amended Complaint does not

allege that the PHRC determined that Frazier had timely complained.100 Nor does
Frazier attach this determination to his Second Amended Complaint.101 Nor does

96 Id.
97 See Clarkson v. SEPTA, 700 F. App’x 111, 114 (3d Cir. 2017) (“Because the tardiness of
Clarkson’s initial EEOC/PHRC complaint is apparent from the face of the complaint and we
decline to toll the statutes of limitation, we will affirm the District Court’s Rule 12(b)(6)
dismissal of Clarkson’s failure to promote claims.”); see also Capriotti v. Chivukula, No.
CIV.A.04-2754, 2005 WL 83253, at *2 (E.D. Pa. Jan. 14, 2005) (“Capriotti’s PHRA claims
against Chivukula are therefore untimely. . . . Chivukula’s Motion to Dismiss is granted.”).
98 Doc. 22. at 20.
99 Datto, 664 F. Supp. 2d at 482.
100 Doc. 18.
Frazier cite any caselaw indicating that the PHRC’s timeliness analysis affects
mine.102 So Frazier’s argument regarding the PHRC’s determination does not save

his PHRA and PFEOA claims from dismissal.
Frazier also counters that “the PHRA and PFEOA claims arose from a single
chain of events, amounting to continuing violations, which culminated in the final
dismissal.”103 But Penn State’s denials of accommodations do “not fit under the

continuing violations theory.”104 And Frazier’s dismissal from the Program “is a
discrete act, not a continuation of any earlier failures to accommodate.”105 Because
the continuing-violation doctrine does not apply either, PHRA and PFEOA claims

are dismissed.
3. Merits
That leaves Frazier’s ADA and RA claims. “Plaintiffs who allege violations
under the ADA . . . and the Rehabilitation Act may proceed under any or all of three

102 Docs. 18, 22.
103 Doc. 22 at 20.
104 Mercer v. SEPTA, 608 F. App’x 60, 63 (3d Cir. 2015); see also Muhammad v. Ct. of Common
Pleas of Allegheny Cnty., Pa., 483 F. App’x 759, 762 (3d Cir. 2012) (“We agree with the
District Court, as Muhammad’s allegations make clear that he was aware at the time that each
of his requests for an accommodation was denied—beginning as early as 2004—that the
absence of accommodations would adversely affect his ability to represent himself. The
District Court correctly . . . concluded that the continuing violations doctrine did not apply
because Muhammad should have been aware of each act’s negative impact at the time it
occurred.”).
105 Zankel v. Temple Univ., 245 F. App’x 196, 199 (3d Cir. 2007) (affirming dismissal with
prejudice); see also Krooks v. Haverford Coll., No. CIV.A. 14-4205, 2015 WL 221082, at *5
(E.D. Pa. Jan. 14, 2015) (“The fact that Plaintiff continued to be distressed and suffer the
consequences of the decisions throughout her tenure at Haverford is not alone sufficient to
prolong the life of this cause of action. The Court’s focus must be on any alleged continuing
violation, not on the allegedly continuing impact on Plaintiff. There was no continuing
theories: disparate treatment, disparate impact, and failure to make reasonable
accommodation.”106 I address each theory in turn.

a. Disparate Treatment
To show disparate treatment, Frazier “must demonstrate: (1) he is a qualified
individual; (2) with a disability; (3) he was excluded from participation in or denied
the benefits of the services, programs, or activities of a public entity, or was

subjected to discrimination by any such entity; (4) by reason of his disability.”107
For the first prong, Frazier alleges good grades and various academic
accomplishments.108 These allegations permit the inference that Frazier was

qualified.
For the second prong, Frazier alleges that his anxiety and depression
overwhelm him, prevent him from engaging in schoolwork, increase his self-
consciousness, and cause self-berating cognitive distortions.109 Frazier’s conditions

also affect his concentration, motivation, and persistence.110 Again, these allegations
permit the inference that Frazier has disabilities.
For the third prong, Frazier alleges that Penn State dismissed him from its
Master’s Program in Applied Clinical Psychology in May 2019.111 This permits an

106 Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002).
107 Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 (3d Cir. 2007), amended on reh’g
(Mar. 8, 2007).
108 Doc. 18 at ¶ 101.
109 Id. at ¶ 10.
110 Id.
inference that Penn State, a public entity, excluded Frazier or denied him the benefits
of the Master’s Program in Applied Clinical Psychology.

For the fourth prong, Frazier alleges that the professor in charge of the
Program, Dr. Brelsford,112 indicated that he should have been able to “muscle
through” his depression.113 Frazier also alleges that Brelsford expressed that

Frazier’s failure to overcome his disabilities “made him irresponsible and therefore
unfit to be a clinician.”114 Dr. Brelsford’s alleged statements permit the inference
that she discriminated against Frazier because of his disabilities. Accordingly,
Frazier has plausibly alleged all four prongs of disparate treatment.

Penn State counters that it dismissed Frazier before it learned of his
disabilities. But the Second Amended Complaint repeatedly alleges that Penn State
dismissed Frazier after he gave notice of his disabilities and requested
accommodations.115 At this stage, I must accept Frazier’s allegations as true.116 So

I cannot dismiss Frazier’s claims by relying on Penn State’s timeline of events
instead.
Penn State also counters that Frazier has not alleged that similarly-situated

students without disabilities were permitted to stay in the Program after they failed
the Practicum. The Third Circuit has “assume[d], without deciding, that identifying

112 Id. at ¶ 37.
113 Id. at ¶ 54.
114 Id.
115 Doc. 18 at ¶¶ 12–17, 19, 37, 40–45, 49–50.
these non-disabled individuals as similarly situated . . . is sufficient to satisfy the
fourth prong of [plaintiffs’] prima facie ADA case.”117 But the Third Circuit has not

held that identifying such similarly-situated individuals is necessary to allege the
fourth prong, causation. So Frazier’s failure to identify similarly-situated students
whom Penn State permitted to stay in the Program does not vitiate his ADA and RA

disparate-treatment claims at this stage.
b. Disparate Impact
Penn State also argues that Frazier has not alleged any facts supporting a
conclusion that the Practicum has a “disparate impact” on people with disabilities.

Indeed, Frazier’s Second Amended Complaint does not allege disparate-impact
liability.118 Nor does Frazier respond to Penn State’s disparate-impact arguments in
his response brief.119 If Frazier raised disparate-impact claims under the ADA or
RA, these claims are dismissed.120

117 Fowler v. AT&T, Inc., 19 F.4th 292, 301 (3d Cir. 2021).
118 Doc. 18.
119 Doc. 22.
120 See Lehenky v. Toshiba Am. Energy Sys. Corp., No. 20-4573, 2022 WL 523739, at *5 (E.D.
Pa. Feb. 22, 2022) (“In fact, her Complaint is completely devoid of any facts to demonstrate
Defendant’s Policy had a disparate impact on a ‘protected group’ or any other employee, but
for her conclusory statement that ‘Defendant’s Drug-free Workplace Policy has a disparate
impact on qualified persons with disabilities and is therefore facially invalid[.]’ . . . This is
simply insufficient to sustain such a claim.”); see also Hanrahan v. Blank Rome LLP, 142 F.
Supp. 3d 349, 355–56 (E.D. Pa. 2015) (“It does not constitute a prima facie case of disparate
impact discrimination under the ADA. Hanrahan’s complaints fall well short of the Twombly
c. Failure to Accommodate
Finally, Penn State argues that Frazier’s request to remain in the Program and
receive a Practicum extension was a fundamental alteration and therefore

unreasonable. “However, whether a requested modification would work a
fundamental alteration requires a fact intensive inquiry.”121 “[I]t is usually
inappropriate to resolve the issue on a motion to dismiss.”122 So Penn State’s motion

to dismiss is denied as to Frazier’s failure-to-accommodate claim.123
III. CONCLUSION
Penn State’s motion to dismiss pursuant to Rule 12(b)(6) is denied as to

Frazier’s disparate-treatment and failure-to-accommodate claims in Counts I and II.
But it is granted with prejudice as to Frazier’s disparate-impact claims in Counts I
and II. It is also granted with prejudice as to Count III.
Leave to amend is not granted. “Among the grounds that could justify a denial

of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and
futility.”124 A complaint is “futile” if even as amended, it would fail to state a claim
upon which relief could be granted.125 Amendment would be futile here because

Frazier has already amended his Complaint twice.

121 Hershman v. Muhlenberg Coll., 17 F. Supp. 3d 454, 458 (E.D. Pa. 2014).
122 Id.
123 Id. (“Therefore, I have no basis to evaluate whether the professor’s failure to accommodate
was reasonable. I will deny Muhlenberg’s motion to dismiss Mr. Hershman’s ADA claims.”).
124 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
As such, Penn State will be given twenty-one days from today’s date to file
an Answer to the surviving claims in Frazier’s Second Amended Complaint. An

appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411763. Public record. Not legal advice.