A federal judge from the Southern District of Mississippi has denied a university’s bid to dismiss the claim of a football player, who alleged that he was denied an opportunity to play football because he has one kidney, violating federal disability laws.
The plaintiff in the lawsuit was Deven Hammond, a student and football player at the University of Southern Mississippi (USM), who only has one kidney. According to Hammond, USM’s football staff enticed him to transfer from LSU to USM by offering him a full scholarship if he worked his way onto the team’s two-deep roster. After Hammond transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Hammond had only one kidney, but cleared him to play without restrictions.
“I was cleared to play and was practicing and working out and everything for the whole month of June up until the point I went and told the (head athletic trainer) about the situation,” according to Hammond. The athletic trainer told the him he had “to stop practicing.” The athletic trainer, allegedly, then took Hammond to a “family medicine doctor who acted as the team physician,” who affirmed the athletic trainer’s decision and pointed to “the liability of his condition,” according to the complaint.
Hammond sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. The plaintiff also offered to execute a waiver of liability. But USM rebuffed the offer. The plaintiff’s attorney suggested in the complaint (https://www.documentcloud.org/documents/4313359-Deven-Hammond-civil-suit.html) that “it has been black-letter law since the 1980s that barring a student with one kidney from playing football after he offers to sign a waiver of liability is a violation of federal anti-discrimination laws. Grube v. Bethlehem Area School District, 550 F. Supp 418 (E.D. Pa.. 1982) (a football team’s doctor advised against a student with one kidney playing football, but an expert cleared him to play and the student offered to sign a waiver of liability. The court granted a preliminary injunction because ‘the plaintiff is being deprived of an important right guaranteed by federal legislation.’)
“As one court put it, the purpose of federal anti-discrimination laws is ‘to permit handicapped individuals to live life as fully as they are able, without paternalistic authorities decided that certain activities are too risky for them.’ Poole v. South Plainfield Board of Education, 490 F.Supp. 948, 953-954 (D.N.J. 1980).”
Thus, Hammond sued USM in federal court, asserting, among other things, claims of discrimination under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Act). USM filed a motion to dismiss.
Tackling the ADA portion of the claim first, the court noted that to establish a claim of discrimination under the ADA, a plaintiff must prove: “(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.” Miraglia v. Bd. of Supervisors, 901 F.3d 565, 574 (5th Cir. 2018). The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1).
The fact that the plaintiff only has one kidney constitutes a “physical impairment” as contemplated by the ADA, according to the court. It also considered the following fact pattern alleged by the plaintiff:
The athletic trainer removed Hammond from practice after learning he only had one kidney.
The team physician would not clear him to play football because he only had one kidney.
McCall continued to hold him from practice after receiving a report from his nephrologist, based on the belief that playing football with one kidney posed a liability issue for the school and a danger to the plaintiff’s health.
The plaintiff alleged that agents of the defendant’s athletic department told other schools that he did not pass a physical because he had only one kidney.
“For a ‘regarded-as’ discrimination claim, the plaintiff is not required to allege or prove that the impairment substantially limited a major life activity, or that the defendant believed it did,” wrote the court. “All that the plaintiff has to show is that the defendant knew of the impairment and withheld public services or benefits because of it. 42 U.S.C. § 12102(1), (3)(A); Burton, 798 F.3d at 230; Williams, 717 F. App’x at 449. The allegations listed above, accepted as true, are sufficient to meet that burden. Therefore, they are sufficient to demonstrate that the plaintiff had a disability as defined by the ADA.”
Turning to the defendant’s argument that it enjoys sovereign immunity from suits under the ADA, the court wrote that the Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. The court added that “this amendment protects states from being sued in federal court. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 276 (5th Cir. 2005). But the protection is not absolute. Id. First, states can waive their sovereign immunity. Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 451 (5th Cir. 2005). Second, ‘Congress may abrogate state sovereign immunity pursuant to the enforcement power conferred by § 5 of the Fourteenth Amendment.’ Id.”
Elaborating on this, it noted that “state universities receiving federal financial assistance have waived sovereign immunity from suits for damages under Section 504 of the Rehabilitation Act. See Pederson v. Louisiana State Univ., 213 F.3d 858, 876 (5th Cir. 2000). It is apparently undisputed that the defendant receives federal funding. Therefore, the defendant waived its sovereign immunity with respect to the plaintiff’s claim under Section 504.”
This may also be true for claims brought pursuant to Title II of the ADA, “where it found that sovereign immunity did not bar identical claims under § 504.” Campbell v. Lamar Inst. of Tech., 842 F.3d 375, 379 (5th Cir. 2016); Bennett-Nelson, 431 F.3d at 455. The 5th Circuit has yet to rule. And the district court was unwilling to decide that issue until it has to, declining to “address whether Title II of the ADA constitutes a valid abrogation of sovereign immunity with respect to the plaintiff’s ADA claim, having concluded that the plaintiff’s identical Section 504 claim is not barred by sovereign immunity.”
The court also rejected the defendant’s argument that it enjoys sovereign immunity from monetary damages with respect to the plaintiff’s Rehabilitation Act claim.
Deven Hammond v. University Of Southern Mississippi; S.D. Miss.; CIVIL ACTION NO. 2:18-CV-150-KS-MTP, 2018 U.S. Dist. LEXIS 193959; 11/14/18
Attorneys of Record: (For plaintiff) William Brock Most – PHV, LEAD ATTORNEY, PRO HAC VICE, LAW OFFICE OF WILLIAM MOST, LLC, New Orleans, LA; Garret S. DeReus – PHV, PRO HAC VICE, BIZER & DEREUS, LLC, New Orleans, LA; Jacqueline K. Hammack, THE BIZER LAW FIRM, LLC, New Orleans, LA. (for defendants) Pope S. Mallette, PRO HAC VICE, John Andrew Mauldin, MAYO MALLETTE, PLLC, Oxford, MS.
