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Perez v. University of South Alabama

United States District Court, S.D. Alabama, Southern Division

August 15, 2019

MICHAEL PEREZ, Plaintiff,
v.
UNIVERSITY OF SOUTH ALABAMA, Defendant.

          OPINION and ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant University of South Alabama's Motion to Dismiss. (Doc. 7). That Motion has been briefed and is now ripe for disposition.

         I. Background.[1]

         Plaintiff Michael Perez was a graduate student in the University of South Alabama's Interdisciplinary Graduate Program in Basic Medical Sciences (BMS) from August 2010 until May 25, 2016. (Doc. 1). After having twice failed a required exam consisting of both written and oral portions, Mr. Perez notified the University in July 2015 of a need for testing accommodations. He met with a faculty advocate and participated in an appeal hearing in August 2015 and was granted a third attempt at the exam which he took in February 2016. He passed the written portion but failed the oral portion. Mr. Perez filed an institutional grievance in May 2016 alleging that the BMS program's oral exam policy was discriminatory against students with disabilities in speaking skills. On May 25, 2016, Mr. Perez was dismissed from the BMS program for failing the qualifying exam. In July 2016, Mr. Perez filed a second institutional grievance alleging violation of the ADA and also filed a complaint with the Department of Education Office for Civil Rights (OCR) against the University alleging violations of the ADA and the Rehabilitation Act. The University engaged with Mr. Perez in an informal resolution process, and while the University agreed to comply with certain of his requests, Mr. Perez was notified that he would not be reinstated to the BMS graduate program. On December 5, 2017, Mr. Perez was notified the OCR investigation was concluded before a final determination.

         In May 2018, Mr. Perez filed a complaint with the Department of Justice Civil Rights Division Disability Rights Section alleging an ADA violation by the University. The Department declined to take action.

         Mr. Perez sued on December 18, 2018, alleging that the University discriminated against him based on disability during the 2015-2016 school year and when it dismissed him from the graduate program on May 25, 2016. Mr. Perez alleged the University's action violated Section 504 [of the Rehabilitation Act] and Title II [of the ADA]. The University filed a Motion to Dismiss the Complaint, alleging that Mr. Perez filed his Complaint after the statute of limitations had run. (Doc. 7).

         II. Analysis.

         a. Mr. Perez's Claim is Untimely.

         Mr. Perez must bring his claim “within 2 years” after the cause of action arose. Ala. Code § 6-2-38(1); see also Horsley v. University of Alabama, 564 Fed.Appx. 1006, 1008 (11th Cir. 2014)(applying Ala. Code § 6-2-38(1) and its two year statute of limitations to claims under Title II of the ADA and the Rehabilitation Act); Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998)(applying Alabama's two-year statute of limitations); see also Brown v. Mobile County Com'rs, No. 14-00343-KD-C, 2015 WL 1444965, at *6 n.7 (S.D. Ala. Mar. 30, 2015)(“Because the events described by the Plaintiff occurred in 2010 . . . and the Plaintiff did not file her Complaint until 2014 . . . any claim arising from those events would be barred by the two- year statute.”)(dismissing plaintiff's Title II disability discrimination claim).

         “A limitations period runs when a cause of action accrues.” Horsley, 594 Fed.Appx. at 1008 (citing Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.1996)). The period accrues when the plaintiff knows or should know both the fact that he has suffered an injury that supports his complaint and also who has inflicted the injury. Id. (citing Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir.2003)). Although Mr. Perez pursued requests for reconsideration of the University's decision[2]and appeals to administrative agencies, [3] these actions do not toll running of the two-year statute of limitations.

         Here, there is complete agreement among the parties that Mr. Perez's dismissal from the program was on May 25, 2016. This is the date on which the alleged discrimination occurred. To be timely, Mr. Perez would have had to sue not later than May 25, 2018. His subsequent grievances in July 2016 to the University and OCR demonstrate that Mr. Perez knew he suffered an injury and who inflicted it. His May, 2018 complaint to the Department of Justice Civil Rights Division Disability Rights Section does not constitute new acts of discrimination that could toll the statute of limitations. Therefore, Mr. Perez's complaint filed on December 18, 2018, is barred by the two-year statute of limitations and is due to be dismissed.

         Mr. Perez's claims accrued over two years before he sued the University, and are therefore time-barred. “[W]e are not free to construe [the statute of limitations] so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims.” McCullough v. United States, 607 F.3d 1355, 1362 (11th Cir. 2010).

         b. Mr. Perez's Claim Is Not Saved by Equitable Tolling.

         As shown by the previous discussion, Mr. Perez's claims against the University of South Alabama were subject to the two-year limitations period specified in Section 6-2-38(1) of the Alabama Code, but they accrued over two and a half years before plaintiff filed the Complaint. Notwithstanding these ...


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