United States District Court, S.D. Alabama, Southern Division
OPINION and ORDER
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
Mr. Perez's Claim is Untimely.
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).
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
decisionand appeals to administrative agencies,
these actions do not toll running of the two-year statute of
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.
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).
Mr. Perez's Claim Is Not Saved by Equitable
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