A federal judge from the Eastern District of Louisiana has dismissed the claim of a walk-on football player at Tulane University, who alleged that he was chased off the football team because of a disability that required accommodations. However, the judge did leave the door open for the plaintiff to amend and re-file his complaint as many of the deficiencies in the complaint were procedural in nature.
Plaintiff Brandon Purcell enrolled at Tulane University in the fall of 2013, and walked on to the football team as a kicker. Purcell claims that he suffers from a learning disability necessitating certain academic accommodations, including double time to take tests, sound-reduced environment, and a note taker. He also alleges that due to his disability, he has better concentration in the morning. Accordingly, his athletics academic advisor, Ruben Dupree, approved him for 8:00 a.m. classes. This represented a departure from the general rule that Tulane football players should not take morning classes.
In the spring of 2015, Purcell was taking 8:00 a.m. classes five days a week. Nevertheless, he was scheduled for a training session from 7:00 a.m. to 8:30 a.m. He states that he would attend the initial portion of the workout, leave for his 8:00 a.m. classes and return to work with his coach after class to complete the missed portion of the workout. On March 4, 2015, Purcell avers that he was called into the office of special teams coach Doug Lichtenberger and was dismissed from the football team. He alleges that Coach Lichtenberger told him that he was a “hindrance” and a “bad example for the team.” Purcell then contacted Athletic Director Rick Dickson and Tulane Head Football Coach Curtis Johnson complaining of discrimination, hostile learning environment, retaliation, and intentional infliction of emotional distress. He alleged that Lichtenberger improperly used Purcell as an example of bad behavior, inciting other members of the football team to harass him and causing emotional distress.
Later that month, Purcell met with Assistant Athletic Director Barbara Burke, who allegedly indicated that he had been removed from the team because there were too many kickers. The plaintiff alleged that the reason is pretextual, claiming that he outperformed other kickers who remained on the team. Purcell ultimately met with Dickson, and demanded an explanation why he was removed from the team, according to the court. Dickson declined to intervene in the matter. He then met with Coach Johnson, Coach Rob Phillips, Coach Byron Ellis, and Coach Wayne Cordova to discuss the matter. The plaintiff alleged that they continued to assert pretextual reasons for his removal from the team.
After this meeting, Purcell continued to train with the team. However, he alleged, he suffered increased abuse and retaliation. He also alleged that his former friends and teammates participated in the abuse, making both physical threats and anti-Semitic comments toward him. The plaintiff then filed a complaint with Wendy Stark of Tulane’s Office of Institutional Equity. Due to the reported increased retaliation, Stark began an independent investigation of the situation. He alleged that Stark failed to maintain confidentiality and participated in the conspiracy and cover up of the disability discrimination, hostile learning environment, retaliation, defamation, and intentional infliction of mental distress.
The situation got worse before it got better, leading to the filing of a lawsuit, brought pursuant to the Americans with Disabilities Act, the Rehabilitation Act, and Louisiana state law against Tulane University and, in some cases, more than a dozen individual defendants.
The defendants moved to dismiss the various claims, pursuant to Federal Rule of Civil Procedure 12(b)6, or the failure to properly state a claim.
The court first considered the Americans With Disabilities Act (ADA) claim. It noted that the plaintiff specifically invoked Title II of the ADA, which prohibits discrimination by public entities. The major problem with this claim is that Tulane is not a public entity subject to Title II of the ADA. Title III is the section of the ADA that applies to private schools, such as Tulane. The court thus dismissed the claim without prejudice against Tulane, enabling the plaintiff to refile his complaint.
The next cause of action was brought pursuant to § 504 of the Rehabilitation Act, which require that “a plaintiff must prove: (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in, denied benefits of, or subjected to discrimination under the Defendant’s program solely because of [his] disability; and (3) that the program in question receives federal financial assistance.”
In their motion to dismiss, the defendants argued that Purcell failed to allege he was a participant in a program or activity that receives federal financial assistance. The court agreed, finding that the claim “deficient.” The court, again, dismissed the claim against Tulane without prejudice.
The third cause of action was brought pursuant to the Louisiana Civil Rights for Handicapped Persons Act. The defendants moved to dismiss this claim based on the fact that the plaintiffs have not complied with the notice provisions of the statute, which provides:
“Any person who believes he has been discriminated against and intends to pursue court action must give the person who has allegedly discriminated written notice of this fact at least 30 days before initiating court action, must detail the discrimination and both parties must make a good faith effort to resolve the dispute before court action. “
The court agreed, but again dismissed the claim without prejudice, leaving the door open for the plaintiff to refile the complaint with proper notice.
Finally, Purcell alleged that all the defendants are liable under Louisiana Civil Code article 2315 for negligence, defamation, and intentional infliction of emotional distress.
The negligence claim failed because the plaintiff failed to properly allege that the defendant “had a duty to conform his conduct to a specific standard.” It thus dismissed that claim, again, without prejudice. The court reached the same conclusion on the plaintiff’s defamation claim.
Lastly, the court considered the intentional infliction of emotional distress claim against a couple of the individual defendants — Coach Lichtenberger and one of Purcell’s teammates. The court noted that a plaintiff has “a ‘heavy burden’ in proving that the conduct at issue was sufficiently outrageous.” The plaintiff failed to meet this threshold, leading the court to dismiss the claim.
Brandon Purcell, et al. v. Tulane University of Louisiana, et al.; E.D. La.; CIVIL ACTION NO: 16-1834, 2016 U.S. Dist. LEXIS 155967; 11/10/16
Attorneys of Record: (for plaintiffs) Wanda Anderson Davis, LEAD ATTORNEY, Leefe, Gibbs, Sullivan, Dupre & Aldous, Metairie, LA. (for defendants) Maria Nan Alessandra, LEAD ATTORNEY, Kim M. Boyle, Phelps Dunbar, LLP (New Orleans), New Orleans, LA.; Wanda Anderson Davis, LEAD ATTORNEY, Leefe, Gibbs, Sullivan, Dupre & Aldous, Metairie, LA.; Ron Anthony Austin, LEAD ATTORNEY, Jeffrey Green, Austin & Associates, LLC, Harvey, LA.; Carl T. Conrad, LEAD ATTORNEY, Aldric C. Poirier, Jr., Blue Williams, LLP (Mandeville), Mandeville, LA.; David K. Groome, Jr., LEAD ATTORNEY, Denia Sylve Aiyegbusi, Deutsch Kerrigan LLP (New Orleans), New Orleans, LA.; Jeffrey Scott Loeb, LEAD ATTORNEY, Hilliard F. Kelly, III, Loeb Law Firm (Mandeville), Mandeville, LA.
