Frogge v. Fox

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

VANESSA FROGGE,

Plaintiff,

v. Civil Action No. 1:17cv155

(Judge Kleeh)

CRAIG FOX, d/b/a Mountain

Line Transit Authority,

Defendant.

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 60], OVERRULING PLAINTIFF’S OBJECTIONS

[DKT. NO. 61, 57], GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [DKT. NO. 45], AND DISMISSING

PLAINTIFF’S AMENDED COMPLAINT [DKT. NO. 3-5] WITH PREJUDICE

Pending before the Court is a Report and Recommendation

(“R&R”) by United States Magistrate Judge Michael J. Aloi (“Judge

Aloi”) [Dkt. No. 60]. For the reasons stated below, the Court

hereby ADOPTS the R&R in its entirety.

I. Factual and Procedural Background

Plaintiff, Vanessa Frogge (“Plaintiff” or “Frogge”),

initiated this case by filing a pro se complaint in the Magistrate

Court of Monongalia County in Morgantown, West Virginia, on April

20, 2017 [Dkt. No. 3-1 at 1]. On June 2, 2017, Defendant Craig

Fox, d.b.a. the Mountain Line Transit Authority (“MLTA”) timely

filed a notice of removal of Plaintiff’s suit to the Circuit Court

of Monongalia County under W. Va. Code § 50-4-8, at which time the

Circuit Court assumed control of the matter [Dkt. No. 3-1 at 30-

34]. At the same time, Defendant filed a Motion to Dismiss

Plaintiff’s Complaint, arguing that the Complaint was in violation

of W. Va. Code §§ 29-12A-13; 29-12A-6(d) [Dkt. No. 4-1 at 2]. The

Court heard argument on Defendant’s Motion to Dismiss on August

15, 2017 [Id.]. The Court ordered Frogge to file an amended

complaint within twenty (20) days of the hearing [Dkt. No. 4-1 at

2]. Plaintiff filed an Amended Complaint against Defendant in the

Circuit Court of Monongalia County, West Virginia, on August 29,

2017 [Dkt. No 3-5].

The Amended Complaint alleged a claim for discrimination

against Defendant, Craig Fox, pursuant to Title II of the Americans

with Disabilities Act of 1990 (“ADA”) [Dkt. No. 3-5]. Plaintiff

alleges that Defendant discriminated against her as “an

opinionated individual acting on his/her own behalf” when he denied

her “Route Deviation Request” in December 2016, and that the

conduct “was outside the scope of his employment as a government

official” [Dkt. No. 3-5 at 9].

The case was removed to the United States District Court for

the Northern District of West Virginia on September 8, 2017. On

September 15, 2017, Defendant filed a Motion to Dismiss [Dkt. No.

4]. A Roseboro Notice was issued to Plaintiff on October 25, 2017.

On November 6, 2017, Frogge, filed a response to Defendant’s motion

and a Request for Pro Se Packet [Dkt. No. 12]. Defendant did not

file a reply. After consideration of the parties’ filings, and

finding no hearing deemed necessary, the magistrate judge

recommended that the Motion to Dismiss be granted [Dkt. No. 16].

Upon review of the magistrate judge’s R&R of February 27, 2018

[Dkt. No. 16], and liberally construing Plaintiff’s Amended

Complaint, the Court found that Frogge alleged sufficient facts to

survive a motion to dismiss and it rejected the R&R [Dkt. No. 20].

The matter was recommitted to Magistrate Judge Aloi to consider

the record and enter rulings or recommendations as appropriate

[Id.].

In her initial Complaint, filed in the Magistrate Court of

Monongalia County in Morgantown, West Virginia, Frogge asserted a

claim of discrimination against Defendant Craig Fox, d.b.a.

Mountain Line Transit Authority and sought $10,000 in damages [Dkt.

No. 3-1 at 1]. In the Amended Complaint, Frogge brings a claim of

discrimination against Defendant, Craig Fox, pursuant to Title II

of the Americans with Disabilities Act of 1990 (“ADA”) [Dkt. No.

3-5]. Plaintiff alleges that within his official capacity,

Defendant Fox discriminated against her as “an opinionated

individual acting on his/her own behalf” when he denied her ‘Route

Deviation Request’ in December 2016 and that such conduct “was

outside the scope of his employment as a government official” [Dkt.

No. 3-5 at 9].

According to her Amended Complaint, Frogge suffers from a

neck condition and lives in an apartment complex on Scott Avenue

in Morgantown, West Virginia. She submitted a route deviation

request to Mountain Line, asking for a new bus stop to be

established at the top of the hill, presumably, within her

apartment complex. She further alleges that “there is no sidewalk

connecting [her] apartment to a hill and several flights of stairs

leading to the [existing] bus stop” [Dkt. No. 3-5 at 8]. She also

alleges that when Defendant conducted a site visit to consider the

proposed deviation request, he failed to include consideration for

her disability [Id.]. Defendant denied Plaintiff’s request

determining that the roads in Frogge’s apartment complex were too

small and did not have an acceptable place for the bus to turn

around. Defendant further determined that fundamental changes

would have significantly impacted other passengers on the route

[Dkt. No. 3-5 at 5, 6].

II. STANDARD OF REVIEW

Defendant’s Motion for Summary Judgment [Dkt. No. 45] is

brought pursuant to Rule 56(c) of the Federal Rule of Civil

Procedure. Under Rule 56(c),

A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by:

(A) citing to particular parts of materials in the

record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations . . . admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish

the absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to

support the fact.

Fed. R. Civ. P. 56(c).

Summary judgment is appropriate when there is no genuine issue

of material fact and the moving party is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c); see also Hunt v. Cromartie,

526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169

(4th Cir. 2014). A “material fact” is a fact that could affect

the outcome of the case. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986); News & Observer Publ’g Co. v. Raleigh-Durham

Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine

issue” concerning a material fact exists when the evidence is

sufficient to allow a reasonable jury to return a verdict in the

nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th

Cir. 2013); News & Observer, 597 F.3d at 576.

Thus, a summary judgment motion should be granted if the

nonmovant fails to make a showing sufficient to establish the

existence of an essential element of his claim or defense upon

which he bears the burden of proof. Celotex, 477 U.S. at 323.

That is, once the movant shows an absence of evidence on one such

element, the nonmovant must then come forward with evidence

demonstrating there is indeed a genuine issue for trial. Id. at

323-324. The existence of a mere scintilla of evidence supporting

the nonmovant’s position is insufficient to create a genuine issue;

rather, there must be evidence on which a jury could reasonably

find for the nonmovant. Anderson, 477 U.S. 252. When determining

whether summary judgment is appropriate, a court must view all

factual evidence and any reasonable inferences to be drawn

therefrom, in the light most favorable to the nonmoving party.

Hoschar, 739 F.3d at 169.

In considering a motion for summary judgment, the court will

not “weigh the evidence and determine the truth of the matter,”

Anderson, 477 U.S. at 249, nor will it make determinations of

credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

If disputes over a material fact exist that “can be resolved only

by a finder of fact because they may reasonably be resolved in

favor of either party,” summary judgment is inappropriate.

Anderson, 477 U.S. at 250. If, however, the nonmoving party “fails

to make a showing sufficient to establish the existence of an

element essential to that party’s case,” then summary judgment

should be granted because “a complete failure of proof concerning

an essential element . . . necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 322-323.

III. DISCUSSION

As stated, this matter is pending on the Report and

Recommendation of Magistrate Judge Aloi, recommending that the

Court grant Defendant’s Motion for Summary Judgment [Dkt. No. 45].

“The Court will review de novo any portions of the magistrate

judge’s Report and Recommendation to which a specific objection is

made . . . and the Court may adopt, without explanation, any of

the magistrate judge’s recommendations to which the [parties do]

not object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600,

603-04 (N.D. W. Va. 2007)(citing Camby v. Davis, 718 F.2d 198, 199

(4th Cir. 1983)). Moreover, the Court must liberally construe pro

se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v.

Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). Having conducted

a de novo review of the R&R and the record, the Court concludes

that Defendant’s Motion for Summary Judgment [Dkt. No. 45] should

be GRANTED in its entirety, that Plaintiff’s Amended Complaint

[Dkt. No. 3-5] be DISMISSED WITH PREJUDICE, and that this case be

STRICKEN from the Court’s active docket.

A. Public Entity

Plaintiff alleges a violation of Title II of the ADA, 42

U.S.C. § 12132, which 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 to

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

entity” includes “any department, agency, special purpose

district, or other instrumentality of a State or States or local

government.” 42 U.S.C. § 12131(1)(B). “[I]ndividuals sued in

their individual capacity are not public entities.” Carter v.

Maryland, No. JKB-12-1789, 2012 WL 6021370, at *5 (D. Md. Dec. 3,

2012). But “a suit against a state official in his or her official

capacity . . . is no different from a suit against the State [or

public entity] itself.” Will v. Michigan Department of State

Police, 492 U.S. 58, 71 (1989).

B. ADA Discrimination

“In general, a plaintiff seeking recovery for violation of

[the ADA] must allege that (1) she has a disability, (2) she is

otherwise qualified to receive the benefits of a public service,

program, or activity, and (3) she was excluded from participation

in or denied the benefits of such service, program, or activity,

or otherwise discriminated against, on the basis of her

disability.” Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 498 (4th Cir. 2005). “The ADA defines a

disability, in part, as a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir.

2001)(internal quotation and alteration omitted)(quoting 42 U.S.

C. § 12102(2)(A)). An individual “is ‘otherwise qualified’ for a

program if she ‘with or without reasonable modifications . . .

meets the essential eligibility requirements for’ participation in

the program.” Zimmeck v. Marshall Univ. Bd. of Governors, 106 F.

Supp. 3d 776, 781 (S.D. W. Va. 2015)(quoting 42 U.S.C. 12131(2)).

A plaintiff may satisfy the third prong by alleging “(1)

intentional discrimination or disparate treatment; (2) disparate

impact; [or] (3) failure to make reasonable accommodations.” Adams

v. Montgomery College (Rockville), 834 F. Supp. 2d 386, 393 (D.

Md. 2011)(quoting A Helping Hand, LLC v. Baltimore County, 515

F.3d 356, 362 (4th Cir. 2008)). “A ‘reasonable accommodation’ is

one that gives the otherwise qualified plaintiff with disabilities

‘meaningful access’ to the program or services sought.” Henrietta

D. v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003)(quoting Alexander

v. Choate, 469 U.S. 287, 301 (1985)). Nonetheless, a public entity

need not make a modification that would “fundamentally alter the

nature of the service, program, or activity.” 28 C.F.R. § 35.130;

see also Tennessee v. Lane, 541 U.S. 509, 531-32 (2004)(explaining

that Title II does not require a public entity to employ any and

all means to make services accessible to persons with disabilities,

and it does not require states to compromise their essential

eligibility criteria for public programs).

C. Analysis

With its Motion for Summary Judgment [Dkt. No. 45], Defendant

argues that Plaintiff’s condition does not meet the ADA’s

definition of “disabled.” While Defendant does not dispute that

Plaintiff has a neck and back condition, it argues that she has

failed to demonstrate that the condition “substantially limits one

or more” of her “major life activities.” Defendant asserts Frogge

has no medical restrictions on her lifestyle, ambulates

independently, and merely as “some difficulty” walking up hill,

playing basketball, and jumping rope [Dkt. No. 46 at 10].

Defendant further argues that no evidence supports

Plaintiff’s claim of intentional discrimination or disparate

treatment. Plaintiff testified at deposition that she did not

know why there was discrimination, only that she believed there to

have been discrimination [Dkt. No. 46 at 12]. Defendant also

contends that it properly demonstrated another reason for the

denial of Plaintiff’s route deviation request – Defendant’s

inability to restructure the nature of the bus route. As support,

Defendant cites the Code of Federal Regulations applicable to the

Department of Transportation. These regulations allow the denial

of a modification to a service when, as in this case, a

modification would significantly alter the nature of a program or

service [Dkt. No. 46 at 14-15]; see also 49 C.F.R. § 37.169(c).

Finally, Defendant argues that it is entitled to qualified

immunity.

Plaintiff filed Objections1 [Dkt. No. 18] to the magistrate

judge’s February 27, 2019, R&R on Defendant’s Motion to Dismiss,

stating that she “never assumed to know the reason why Craig Fox

discriminated against [her] by denying [her] request]” [Dkt. No.

18 at 3]. Frogge argues that “the only way he could have come to

the conclusion to deny my request was if [Defendant] acted outside

of government regulations. Hence, he acted with bias forming his

own opinion versus within the exceptions of his employment. That,

more specifically, is the act of discrimination; Craig Fox knew

the rules & chose to omit them” [Id. at 6]. Plaintiff states

“despite the small roads all over Morgantown & bus routes, the 5

minutes it would take to pick [her] up & the different sized buses

that could have been utilized, including a van (New Fit), she was

not even offered limited deviation assistance with smaller buses”

[Id. at 7]. Plaintiff claims that her “previous deviation request

included uncanny, similar circumstances with a small road & parking

lot,” and was granted2 [Id.].

1 While Plaintiff titled her pleading “Objections to a Report and

Recommendation,” Plaintiff specifically incorporates the document as a Response

to Defendant’s Motion for Summary Judgment [Dkt. No. 57]. Plaintiff filed a

document on April 26, 2019 [Dkt. No. 61], titled “Response to Judge Aloi’s

Report,” which followed the R&R issued by the magistrate judge on April 12,

2019 [Dkt. No. 60]. The Court construes Plaintiff’s letter response [Dkt. No.

61] as an objection to the R&R.

2 In September 2015, Plaintiff made a deviation request of Defendant which

identified the location of the requested deviation as follows: “Kroger’s

Grocery Store off of Patteson, across from Rite Aid, UPS Store, & Volcano Sushi:

Parallel to WVU Alumni Building off of University Ave./Alumni Drive” [Dkt. No.

46-1 at 51]. The 2015 deviation request was approved after a site visit [Id.].

Nothing in the record indicates that the location at issue in September 2015

was similar or comparable to the location identified by Plaintiff in her

December 2016 request.

Defendant argues that Plaintiff offers no support for her

conclusory statements regarding the alleged discrimination.

Specifically, Plaintiff offers no support for her belief that

Defendant could utilize a smaller bus, that MLTA granted a previous

and similar deviation request for convenient access, or that the

only reason her deviation request could have been denied was

because of discrimination. Defendant contends that Plaintiff’s

claims are not supported by facts or evidence in the record.

Defendant also argues that Frogge’s new Title VI claim for

discrimination based on race is not in the Amended Complaint or

supported by evidence.3

1. Defendant is a public entity

At the motion to dismiss stage, Defendant argued that

Plaintiff did not sue Defendant Fox in his official capacity, and

the Court found that position unpersuasive. Defendant concedes

that Mountain Line is an instrumentality of Monongalia County,

West Virginia, organized to provide public transportation [Dkt.

No. 4-1 at 5]. Indeed, Defendant’s letterhead, on which Plaintiff

received her notice of denial, states that “Mountain Line is the

business name of the Monongalia County Urban Mass Transit

3 In her March 26, 2019, filing [Dkt. No. 57], Plaintiff discusses a Title VI

discrimination claim. Nowhere in the pleadings has Plaintiff presented any

allegation that the alleged discrimination she suffered was a result of her

race or ethnicity. Even assuming the facts in the light most favorable to the

Plaintiff, the Court cannot find that Plaintiff has alleged any circumstances

that would support a claim under Title VI.

Authority” [Dkt. No. 46-1 at 53]. Plaintiff brought her claim

against Defendant Fox, as Operations Supervisor, who was “doing

business as the Mountain Line Transit Authority” [Dkt. No. 1-1 at

1]. Consistent with the prior ruling that Plaintiff sued Defendant

in his official capacity, the Court FINDS that Plaintiff’s ADA

claim was brought against a public entity – that is, Defendant Fox

in his official capacity and as employee of a public entity. Will,

491 U.S. at 71; Estelle, 429 U.S. at 106.

2. Plaintiff is not disabled under the definition of the

Americans with Disabilities Act

The ADA defines “disability” as “a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual.” “Substantially limits” is defined

as “significantly restricted as to the condition, manner or

duration to the condition, manner, or duration under which the

average person in the general population can perform that some

major life activity,” or the inability “to perform a major life

activity that the average person in the general population can

perform.” 29 C.F.R. § 1630.2(j)(l)(ii). “Examples of ‘major life

activities’ are ‘caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.’” Id. Some limitation in “major life activities” does

not always equal a substantial limitation.” Stewart v. Weast, 228

F. Supp. 2d 660 (D. Md. 2002).

That Plaintiff has a physical impairment is not at issue.

Plaintiff testified that she suffers from degenerative disc

disease of the neck [Dkt. No. 46-1 at 9], and there is no evidence

in the record to suggest otherwise. Defendant states that it does

not contest this allegation [Dkt. No. 46 at 7]. However, to

qualify as a disability, this condition must “substantially limit

one or more” of Plaintiff’s major life activities.

No evidence before the Court shows that Plaintiff is

substantially limited in a major life activity by her condition.

As Defendant notes, there is no evidence that Plaintiff is unable

to walk from her door step to Scott Avenue to utilize the bus stop.

There is also no evidence about Plaintiff’s inability to walk

generally, and no evidence that Plaintiff’s walking is restricted

by a physician. Plaintiff failed to present specific evidence to

establish her condition as an impairment that substantially limits

the major life activity of walking, and she admitted in her

deposition that the only major life activity implicated by her

claim is the ability to walk4 [Dkt. No. 46-1 at 22, Exh. B at

74:22-77:5]. Plaintiff conceded that no physician had placed any

4 See Dkt. No. 46-1 at 22 (Q: You’re not claiming that you cannot walk to the

bus stop; is that correct? A: That is around the discrimination. That is part

– I would say, yes, it is part of the claim because if I had the deviation

request I wouldn’t have to walk up the mountain to the bus stop from where my

apartment is. If I had the deviation request it wouldn’t be me having to walk

up a hill to go to the bus stop.”)

medical restrictions on her associated with her ability to walk

[Id. at Exh. B at 57:15-60:12].

At deposition, Frogge testified as follows:

Q: Okay. Has anyone ever told you you shouldn’t climb

stairs with your condition.

A: I don’t recall any lower body restrictions at all.

Q: So no doctors told you you can’t walk under your

conditions?

A: No, I don’t think so.

. . .

Q: Has anyone told you you can’t ambulate?

A: Not that I – not that I recall. The terms sounds

familiar but I don’t recall anyone telling me that

I cannot walk or ambulate.

Q: Has any doctor instructed you you should be walking

on the sidewalks and not in the road or in the

grass?

A: None that I can recall.

. . .

Q: Does that say “Can ambulate independently”?

A: It does.

Q: And is “yes” circled?

A: It is.

[Dkt. No. 46-1 at 18-25].

While Plaintiff’s testimony indicates that she has some

limitation in walking up hills and in the snow [Dkt. No. 46-1 at

22], these limitations do not equate to a substantial limitation

in her ability to walk. See Fink v. Richmond, 405 Fed. App’x 719

(4th Cir. 2010)(finding there was no genuine issue of material fact

when plaintiff was only limited in walking quickly or for long

distances and thus not disabled under the ADA); Stewart v. Weast,

228 F. Supp. 2d 660 (D. Md. 2002); see also Harmon v. Sprint United

Management Corp., 264 F. Supp. 2d 964 (D. Kan. 2003)(finding that

plaintiff can walk half a mile, sit for up to five hours, lift up

to 100 pounds, and has no physician restrictions other than

“prolonged” walking, sitting, or standing, as insufficient to

classify plaintiff as disabled); Miller v. Wells Dairy, Inc., 252

F. Supp. 2d 799 (N.D. Iowa 2003)(ability to walk well on level

surface, but ability to walk less than previously could, walk up

three steps, and need to walk slower does not render plaintiff

disabled); Zuppardo v. Suffolk County Vanderbilt Museum, 19 F.

Supp. 2d 52 (E.D.N.Y. 1998)(ability to walk more than 1/8th of a

mile without stopping rendered plaintiff not disabled within the

definition of the ADA); and Banks v. Hit or Miss, Inc., 996 F.

Supp. 802 (N.D. Ill. 1998)(plaintiff’s ability to walk unassisted

without use of cane or crutch, lack of medical restrictions, and

failing to provide any specific facts or evidence to show that

plaintiff’s walking was substantially limited weighs against

plaintiff).

The Court adopts the recommendation of the magistrate judge

and FINDS that Plaintiff has failed to make a showing of fact that

her condition substantially limits her ability to walk, and

therefore, that she is disabled under the ADA.5

5 While the Court finds that Plaintiff has not satisfied a necessary threshold

requirement for her public accommodations ADA claim, it will nevertheless

3. Plaintiff was qualified to receive the benefits of

public service, program, or activity

A plaintiff is “qualified” if she is “an individual with a

disability who, with or without reasonable modifications to rules,

policies, or practices, . . . meets the essential eligibility

requirements for the receipt of services or the participation in

programs or activities provided by a public entity.” 42 U.S.C. §

12131(2). Regardless of disability, there is no dispute as to

whether Plaintiff is permitted to use the public transportation

system, or whether she is eligible to submit a deviation request

and potentially benefit from a deviation. Therefore, there is not

a factual dispute as to the second prong. See Frogge v. Fox, No.

1:17-cv-155, 2018 WL 3132604, at *3 (N.D.W. Va. June 26, 2018)(slip

copy).

4. Plaintiff was not excluded from participation in or

denied the benefits of such service, program, or

activity on the basis of disability

Plaintiff claims that she was denied the deviation request

from MLTA as a result of her disability [Dkt. No. 46-1 at 754].

The deviation requests submitted by Frogge are in the record before

the Court and confirm the denial of her December 2016 request6 [Id.

continue its analysis of the claim and the summary judgment record given

Plaintiff’s status as a pro se litigant.

6 Plaintiff sought a deviation request from Defendant in September 2015 which

identified the location of the requested deviation as follows: “Kroger’s

Grocery Store off of Patteson, across from Rite Aid, UPS Store, & Volcano Sushi:

Parallel to WVU Alumni Building off of University Ave./Alumni Drive” [Dkt. No.

46-1 at 51]. The 2015 deviation request was approved after a site visit [Id.].

Plaintiff submitted the deviation request that is now at issue on December 28,

2016, and identifies the following as the location: “Into the Cedar Glen

at 53, 55, 57]. Thus, there is no factual dispute that Plaintiff

was denied the benefit of a service deviation that Mountain Line

offers [Id. at 74, 53].

The Court must determine whether Plaintiff’s alleged

disability was the basis of or “played a ‘motivating role’” in

Defendant’s denial of her deviation request. See Thompson v. Va.

Dept. of Game and Inland Fisheries, No. 1:06-cv-65, 2007 WL 984225,

at *3 (W.D. Va. March 30, 2007)(citing Baird v. Rose, 192 F.3d

462, 470 (4th Cir. 1999)). The Fourth Circuit Court of Appeals

has recognized “three distinct grounds for relief” as to this

element of an ADA claim: 1) intentional discrimination or

disparate treatment, 2) disparate impact, and 3) failure to make

reasonable accommodations. A Helping Hand, LLC v. Baltimore

County, 515 F.3d 356, 362 (4th Cir. 2008). Defendant argues that

the decision to deny Plaintiff’s request was based on the inability

of a large bus to safely maneuver down Madeline Circle to

Plaintiff’s residence, and then to turn around and exit Plaintiff’s

apartment complex. Defendant also states that it did not have the

ability to change the size of the bus due to the large population

that utilizes the Green Line Route, the bus route at issue.

Apartment Complex, toward the right (second to last set of townhomes at the

bottom of the hill) #39 *New Request due to move; see previou[s] request*” [Dkt.

No. 46-1 at 55]. The second request was denied by letter dated December 30,

2016 [Dkt. No. 46-1 at 53]. The denial letter explained “[u]pon inspection of

this facility, bus service fronts this complex and there are several riders

that use this stop to access our service. Unfortunately, the stop at the

entrance of Cedar Glen is as close as we can get to your residence” [Id.].

Plaintiff claims that “the only way [Defendant] could have come to

the conclusion to deny my request was if he acted outside of

government regulations. Hence, he acted with bias forming his own

opinions versus within the expectations of his employment” [Dkt.

No. 57 at 6]. Plaintiff offers nothing outside of her belief as

evidence that her deviation request was denied on the basis of

discrimination.

i. Intentional or Disparate Treatment

As the magistrate judge notes in the R&R, Plaintiff states

that she “never assumed to know the reason why Craig Fox

discriminated against me by denying my request” [Dkt. No. 57 at

3]; see also [Dkt. 46-2 at 43]. Plaintiff has not demonstrated

any fact that shows Defendant intentionally discriminated against

her because of her disability. There is no genuine issue of

material fact for trial as to whether Plaintiff was subjected to

intentional discrimination.

ii. Disparate Impact

A disparate impact claim is one where there are practices

that appear facially neutral, but harshly affect one group more

than another. Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).

Plaintiff does not allege that MLTA treats any group differently

when it considers deviation requests, but that she, as a disabled

person, is being more harshly affected than non-disabled people.

Accordingly, there exists no genuine issue of material fact as to

a disparate impact claim.

iii. Reasonable Accommodation

Plaintiff alleges that Defendant did not provide a reasonable

accommodation7 based on her belief that the specific deviation she

requested was reasonable and capable of being accomplished. A

“reasonable accommodation” is “one that gives the otherwise

qualified plaintiff with disabilities ‘meaningful access’ to the

program or services sought.” Henrietta D. v. Bloomberg, 331 F.3d

261, 282 (2d Cir. 2003)(quoting Alexander Choate, 469 U.S. 287,

301 (1985)).

The Department of Transportation allows for a request for

modification as to the accessibility of transportation services

for those who are disabled. 49 C.F.R. § 37.169.

Requests for modification of a public entity’s policies

and practices may be denied only on one or more of the

following grounds:

(1) Granting the request would fundamentally alter the

nature of the entity’s services, programs, or

activities;

(2) Granting the request would create a direct threat to

the health or safety of others;

7 For the purpose of public accommodations ADA claims under Title II, the term

“reasonable accommodations” is derived from the employment discrimination

provisions of Title I of the ADA, and is essentially synonymous with the term

“’reasonable modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or the provision of

auxiliary aids and services.”” See 42 U.S.C. § 12131(2). Reasonable

modifications are what Title II of the ADA requires a public entity to provide.

See Ash v. Md. Transit Admin., No. ELH-18-1216, 2019 WL 1129439, at *5 (D. Md.

March 12, 2019)(citations omitted).

(3) Without the requested modification, the individual

with a disability is able to fully use the entity’s

services, programs, or activities for their intended

purpose.

49 C.F.R. § 37.169(c).

The record before the Court demonstrates that Plaintiff has

no experience driving a commercial vehicle, does not have a

commercial driver’s license, has never driven an 18-wheeler or

bus, and has no expertise when it comes to driving or maneuvering

a passenger bus [Dkt. No. 46-1 at 7-8]. Plaintiff provides no

factual support for her allegation that Defendant failed to provide

a reasonable modification based on her disability, and instead

relies solely on her belief that a smaller bus or van could be

utilized for the particular route on which Plaintiff’s residence

is located. Based on this personal belief, Plaintiff feels that

Defendant’s denial of the December 2016 deviation request must

have been discriminatory.

Defendant has demonstrated that Plaintiffs’ deviation request

was based on MLTA’s inability to alter the bus route. Defendant

also established that Plaintiff’s request would require a

significant alteration to the nature of the transportation service

provided by Defendant. Evidence produced by Defendant

demonstrates that the requested deviation would alter the nature

of the service, program, or activity, and that a full-sized bus

would be unable to safely maneuver the road to and from Plaintiff’s

residence, an apartment complex with only one point of entry and

exit. After evaluating Plaintiff’s request, Defendant determined

that the Green Line Route, which services the Cedar Glen

Apartments, requires a full-size bus due to the large population

serviced by the route. Furthermore, there is a bus stop on Scott

Avenue which is adjacent to Plaintiff’s apartment complex on

Madeline Circle, a dead-end road. After a site inspection,

Defendant determined that a full-sized bus could not safely

maneuver in to and around Madeline Circle and exit on to Scott

Avenue. Plaintiff has not produced evidence to demonstrate that

Defendant denied her a reasonable accommodation by failing to

utilize another bus or van to access her residence.

Accordingly, the summary judgment record suggests that

Plaintiff’s alleged disability was neither considered by Defendant

nor a motivating factor in MLTA’s denial of Plaintiff’s December

2016 deviation request.8 Due to applicable DOT regulations and

the specific location and characteristics of Plaintiff’s apartment

complex, Defendant would have rejected Plaintiff’s deviation

request regardless of her health conditions or disability. No

genuine issue of material fact exists as to the ADA claim alleged

8 In fact, the record suggests the opposite. Defendant granted Plaintiff’s

deviation request in 2015 after a site visit revealed such a deviation was

feasible – unlike the deviation request at issue here. Regardless, it is

illogical to believe Defendant harbors discriminatory animus toward Plaintiff

on any basis, including unlawful disability discrimination, when it previously

granted her the deviation she requested under drastically different

circumstances. Such discriminatory tendencies are not as easily ignored as

Plaintiff suggests.

by Plaintiff in her Amended Complaint and argued in her pleadings;

accordingly, the Court FINDS that Defendant is entitled to summary

judgment as a matter of law.

CONCLUSION

For the reasons stated above, the Court:

1. ADOPTS the Report and Recommendation in its entirety

[Dkt. No. 60], recommending that Defendant’s Motion for

Summary Judgment [Dkt. No. 45] be granted and

Plaintiff’s Amended Complaint [Dkt. No. 3-5] be

dismissed with prejudice;

2. OVERRULES Plaintiff’s Objections [Dkt. Nos. 61, 57];

3. GRANTS Defendant’s Motion for Summary Judgment [Dkt. No.

60];

4. DISMISSES WITH PREJDICE Plaintiff’s Amended Complaint

[Dkt. No. 3-5]; and

5. STRIKES this case from the Court’s active docket.

If the Plaintiff should desire to appeal the decision of this

Court, written notice of appeal must be received by the Clerk of

this Court within thirty (30) days from the date of the entry of

the Judgment Order, pursuant to Rule 4 of the Federal Rules of

Appellate Procedure.

It is so ORDERED.

Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk

of Court to enter a separate judgment order and to transmit copies

of both orders to counsel of record and to the pro se Plaintiff,

certified mail, return receipt requested.

DATED: June 10, 2019

_____________________________

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE