A federal judge from the Eastern District of Louisiana has dismissed with prejudice the claim of a former Tulane University football player, who alleged that the school and several individual defendants cut him from the team because of his learning disability in violation of federal and state law.
Plaintiff Brandon Purcell enrolled at Tulane University in the fall of 2013, and walked on to the football team as a kicker. Purcell claimed that he suffers from a learning disability, which necessitated certain academic accommodations, including double time to take tests, a sound-reduced environment, and a note taker. He also alleged that due to his disability, he has better concentration in the morning. Accordingly, his athletics academic advisor, Ruben Dupree, approved him for 8 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 a.m. classes five days a week. Nevertheless, he was scheduled for a training session from 7-8:30 a.m. He stated that he would attend the initial portion of the workout, leave for his 8 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 claimed he was called into the office of special teams coach Doug Lichtenberger and was dismissed from the football team. He alleged 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 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 federal and 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 granted the motion, but left the door open for the plaintiff to re-file his complaint. The plaintiff obliged, and parts of his claim were dismissed again.
Pursuant to the latest complaint, the only remaining defendants are the administrators of the Tulane Educational Fund (Tulane) and Byron Ellis, Tulane’s Director of Football Operations. The claims that remain against Tulane include alleged violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act (Act), and the Louisiana Civil Rights Act for Persons with Disabilities. The remaining claims against Ellis include a Louisiana state law defamation claim by Purcell and associated state law loss of consortium claims by his parents.
In its analysis, the court immediately dismissed the ADA claim for “lack of standing.”
Turning to Section 504 of the Act, the court quoted from the statute, which provides:
“No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
“The Act defines an ‘individual with a disability’ as ‘any individual who has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment.’ The Act further defines ‘program or activity’ to include ‘all the operations of . . . a college, university, or other postsecondary institution.’”
The court assumed that Purcell’s learning disability “qualifies him for protection under the Rehabilitation Act and that Tulane qualifies as a program under the Act from which Purcell cannot be excluded based on his disability. The question, then, is whether Tulane violated the Act when it released Purcell from its football team.
“Purcell alleges that Tulane violated the Act in three distinct ways. First, he claims that Tulane discriminated against him because of his disability when he was cut from the football team in March 2015, subsequently reinstated, and then cut again in August 2015. Second, Purcell claims that Tulane allowed a hostile environment to flourish because ‘Purcell was subjected to harassment as a result of complaining about discrimination.’ Third, and finally, Purcell claims Tulane retaliated against him by cutting him from the team a second time after Purcell complained to the university that he was cut the first time because of his disability.”
The court went on to address each individually.
On the first point, it wrote that “to succeed on a discrimination claim under the Act, a plaintiff must show that he suffered discrimination solely because of his disability.” Purcell made his argument by noting that special teams coach Lichtenberger told him he was cut “because he missed too many practices because he had taken morning classes “because of his disability. The court found that the plaintiffs’ argument “suffers from fatal flaws. At the outset, this Court notes that Purcell’s disability accommodation plan did not mandate that he take morning classes. He in fact took many afternoon classes throughout his education at Tulane, eventually graduating with a 3.6 cumulative GPA. … Further, Coach Lichtenberger testified that he did not even know about Purcell’s disability when he cut Purcell from the team in March 2015.” For this and other reasons, the plaintiff failed to carry his burden that the real reason he was cut was because of his disability.
On the second point, the court noted that for the plaintiff to show there was a hostile environment in violation of the Act, he would need to prove: “(1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) [defendant] knew about the harassment, and (5) [defendant] was deliberately indifferent to the harassment. Even assuming Purcell qualifies as a disabled individual protected by the Act, the plaintiff has failed to provide evidence showing Purcell was harassed based on his disability,” wrote the court in dismissing the claim.
On the final point, the court wrote that “to establish a prima facie case of retaliation under the Act, a plaintiff must show: (1) he engaged in a protected activity; (2) the defendant took an adverse action against him; and (3) a causal connection existed between the adverse action and the protected activity.” The defendant cut the plaintiff “for non-retaliatory reasons” and the plaintiff “has failed to provide evidence that the second cut would not have occurred, but for Purcell’s complaints about his initial cut. As such, Tulane is entitled to summary judgment on this claim.”
Brandon Purcell, et al. v. Tulane University of Louisiana, et al.; E.D. La.; Civil Action NO: 16-1834, 2017 U.S. Dist. LEXIS 212371; 12/18/18
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.
