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DOURIS v. OFFICE OF THE PENNSYLVANIA ATTORNEY GENERAL

United States District Court, E.D. Pennsylvania


February 19, 2004.

JAMES GEORGE DOURIS
v.
OFFICE OF THE PENNSYLVANIA ATTORNEY GENERAL, ET AL

The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge

MEMORANDUM & ORDER

Pro se Plaintiff James George Douris has filed this action against the Bucks County District Attorney's Office, and Dianne Gibbons and Arlene J. Angelo in their individual capacities for violations of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 951, et seq.*fn1 Plaintiff alleges that proper accommodation was not made for him at an auction of confiscated property in Bucks County. Plaintiff seeks equitable relief, damages, and attorney's fees and costs. Presently before the Court is Defendants Gibbons and Angelo's Motion to Dismiss (Docket No. 16). For the reasons that follow, the Motion will be granted and the claims against Gibbons and Angelo will be dismissed.

I. Facts

  Plaintiff alleges that he is disabled. He contends that he is confined to a wheelchair, is unable to use either of his hands, has chronic arthritic pain, and has visual and hearing problems. (Compl. ¶ 3.) On October 12th and 13th, 2001, Plaintiff attended a public auction of confiscated Page 2 property in Bucks County. The auction was held by the Office of the District Attorney of Bucks County. (Id. ¶¶ 14, 15.) The property on which the auction was held did not have any posted handicapped parking signs close to the entrance of the building where the auction was conducted. (Id. ¶ 12.) Once inside the building, Plaintiff attempted to participate in the auctions. However, because of Plaintiff's inability to use his hands he was unable to fill out a "bid" and take advantage of the opportunity of participating in the auction. (Id. ¶ 16.) No accommodation was made for Plaintiff's disabilities. In addition, while at this public auction, Plaintiff attempted to use the restroom facilities. Again, because of his disabilities Plaintiff could not use the facilities that were provided. No accommodation had been made for his disability. (Id. ¶ 17.) Plaintiff alleges that Defendants Gibbons and Angelo are liable because they "have retaliated and coercion (sic) with each other to not pay Plaintiff Douris any money for damages as a form of coercion and intimidation in the Pa. Human Relations Commission Hearing Proseedings (sic)." (Compl. ¶ 25.) Plaintiff also alleges that he has been treated differently than other individuals with disabilities. (Id. ¶¶ 23, 24.) Defendants move to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). Defendants' Motion is based solely on the argument that the there is no liability under Title II of the ADA and the PHRA against individuals.*fn2

 II. Legal Standard

  Fed.R.Civ.P. 12(b)(6) allows a court to dismiss a complaint for failure to state a claim. The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case. Tracinda Corp. v. Daimlerchrysler AG, Page 3 197 F. Supp.2d 42, 53 (D. Del. 2002). Though the "plain statement" rule of 8(a) is construed quite liberally, the court need not credit a plaintiff's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997). The court should not look to whether plaintiff will "ultimately prevail." It should only consider whether plaintiff should be allowed to offer evidence in support of their claims. In re Burlington Coat Factory Sees. Litig., 114 F.3d 1410, 1420(3dcir. 1997).

  Plaintiff is proceeding pro se. A pro se complaint, "however inartfully pleaded," is subject to more liberal review than a district court's review of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). In liberally construing a pro se plaintiff's pleadings, we will "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 687 (3d Cir. 2002).

 III. Discussion

  Defendants argue that they cannot be sued under Title II of the ADA because that statute does not provide for liability against individuals. The Third Circuit has yet to specifically address this issue. However, in Emerson v. Thiel College, while holding that individuals are not liable under Title III of the ADA the court stated that "[t]his result comports with decisions of other courts of appeals holding that individuals are not liable under Title I and II of the ADA, which prohibit discrimination by employers and public entities, respectively." 296 F.3d 184, 189 (3d Cir. 2002) (citing Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001); Butler v. City of Prairie Vill., 172 F.3d 736, 744 (10th Cir. 1999); Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000)). Other courts in this district have found that individuals cannot be liable under Title II. See Wesley v. Vaughn, No. 99-1228, 2003 WL 1493375, *4 (E.D. Pa. Mar. Page 4 19, 2003); Maeagna v. Salisbury Township Sch. Dist., No. 98-1033, 1998 WL 961906, *3 (E.D. Pa. Dec. 29, 1998).

  Plaintiff contends that Defendants are individually liable because they retaliated against him. Retaliation claims under the ADA fall under Title V. Section 503 of Title V provides, "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter."*fn3 42 U.S.C.A. § 12203(a). In a case previously filed in this court, Plaintiff brought a claim of retaliation under Title V against Defendant Gibbons and others. In dismissing that claim against the individual defendants, the court observed that the "consensus view among district courts in this circuit is that individual liability cannot be imposed under the ADA. Douris v. Schweiker, 229 F. Supp.2d 391, 397 (E.D. Pa. 2002) (quoting Douris v. County of Bucks, No. Civ. A. 99-3357, 2001 WL 767579 (E.D. Pa. July 3, 2001); see e.g., Schumacher v. Souderton Area School Dist., C.A. No. 99-1515, 2000 WL 72047, *3 (E.D. Pa. Jan. 21, 2000); Metzgar v. Lehigh Valley Housing Auth., C.A. No. 98-3304, 1999 WL 310639, *4 (E.D. Pa. July 27, 1999); Fullman v. Phila. Int'l Airport, 49 F. Supp.2d 434, 441 (E.D. Pa. 1999); Brannaka v. Bergey's, Inc., C.A. No. 97-6921, 1998 WL 195660, *1-2 (E.D. Pa. Mar. 30, 1998).

  Despite the language of 42 U.S.C.A. § 12203(a), two circuits have addressed the issue of individual liability for retaliation under § 12203(a) and reached different conclusions. See Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir. 2003) (holding that an individual Page 5 may be sued in his or personal capacity for violating § 12203 in the public services context); compare Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (holding that despite the statutory language, Congress did not intend individuals to be liable under § 12203). While the Third Circuit has not spoken to this issue, even if we were to assume that individual liability exists under § 12203, Plaintiff's claim must fail.

  Retaliation claims under § 12203(a) of the ADA are analyzed under the same framework employed in retaliation claims under Title VII. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). To establish a prima facie case of retaliation under the ADA plaintiff must show that: "(1) a plaintiff was engaged in protected activity; (2) the alleged retaliator knew that plaintiff was involved in protected activity; (3) an adverse decision or course of action was taken against plaintiff; and (4) a causal connection exists between the protected activity and the adverse action." P.N. v. Greco, 282 F. Supp.2d 221, 243 (D.N.J. 2003) (citing Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002).

  Plaintiff has brought several lawsuits in this district against Gibbons, Bucks County and other defendants. Plaintiff now asserts that Gibbons and Angelo have taken adverse action against him because of this litigiousness. Plaintiff alleges that Gibbons' and Angelo's failure to compensate him financially after he made the instant charge of discrimination was an act of retaliation. He alleges that the failure of Gibbons and Angelo to make all of the ten accommodations which he demanded in this matter was an act of retaliation. Plaintiff alleges that as a result of Gibbons' and Angelo's dislike for him, they have retaliated against him by failing to treat him in a manner similar to an employee of the Bucks County District Attorney's Office who developed a brain tumor and another county employee who received a monetary Page 6 settlement after making a claim against the county. Finally, Plaintiff alleges that he was retaliated against when no accommodation was made to give him the opportunity to sit in a "Lamborghini" that was on display at the auction even though Gibbons was permitted to sit in the vehicle.

  Even if the Third Circuit were to determine that individuals can be liable for retaliation under § 12203(a), we are satisfied that the decisions made and the actions taken by Gibbons and Angelo as alleged by Plaintiff are not "retaliation" as contemplated by Congress when it enacted § 12203(a) of the ADA. Certainly the refusal to pay money to settle a claim and the refusal to capitulate to all demands of accommodation cannot be characterized as "retaliation" in these circumstances. The failure to treat Plaintiff the same as those who are not similarly situated is not retaliation. Finally, Plaintiff's complaint that he did not have the opportunity to sit in a "Lamborghini" trivializes the ADA. Under the circumstances, Plaintiff's claims of retaliation against Diane Gibbons and Arlene J. Angelo will be dismissed.

  An appropriate Order follows. Page 7

  ORDER

  AND NOW, this 19th day of February, 2004, upon consideration of Defendants Gibbons and Angelo's Motion to Dismiss the Complaint (Docket No. 16), and all papers filed in support thereof and in opposition thereto, it is ORDERED that Defendant's Motion is GRANTED and the action against Defendants Gibbons and Angelo is DISMISSED.

  IT IS SO ORDERED.


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