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Isaacs v. Trustees of Dartmouth College

United States District Court, D. New Hampshire

October 24, 2017

Dr. Jeffrey Isaacs
Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth-Hitchcock Medical Center

          Pierre A. Chabot, Esq.

          J.D. Isaacs, pro se

          Edward M. Kaplan, Esq.

          Kathleen C. Peahl, Esq.

          Christopher James Pyles, Esq.



         Asserting claims that arise from a decision by the New Hampshire Board of Medicine (“Board”) to reprimand him, after he was dismissed from a residency program in psychiatry operated by Dartmouth-Hitchcock Medical Center (“DHMC”), Dr. Jeffrey Isaacs has sued the Board, DHMC, and the Trustees of Dartmouth College (“Trustees”). As a result of a previous order, this case now consists of: (1) substantive and procedural due process claims, brought by means of 42 U.S.C. § 1983, against the Board's attorney, its Administrator, and the individual members of the Board (Count I);[1] (2) a disability discrimination claim under Title II of the Americans With Disabilities Act (“ADA”), see 42 U.S.C. § 12132, against the Board (Count III); (3) an ADA retaliation claim, see 42 U.S.C. § 12203, against the Board (Count IV); (4) a claim for prospective injunctive relief against the Board (Count V); and (5) an ADA retaliation claim against DHMC and the Trustees (Count VIII). Before the court are: (1) plaintiff's response to an order directing him to show cause why Counts IV and VIII should not be dismissed for failure to exhaust administrative remedies; (2) the Board's motion to dismiss plaintiff's First Amended Complaint (“FAC”); and (3) the Trustees' motion to dismiss the FAC. For the reasons that follow, both motions to dismiss are granted. But before turning to those motions, the court addresses ADA exhaustion, which is the subject of the parties' show cause briefing.

         I. ADA Exhaustion

         Count IV asserts an ADA retaliation claim against the Board, and Count VIII asserts an ADA retaliation claim against DHMC and the Trustees. In its show cause order, the court noted that in Rivera-Díaz v. Humana Insurance of Puerto Rico, Inc., the court of appeals held that

[c]laims of employment discrimination and retaliation under the ADA are subject to the procedural requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 to -9. See 42 U.S.C. §§ 12117(a), 12203(c); Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 142 (1st Cir. 2012). Under this procedural regime, litigation “is not a remedy of first resort” for either discrimination or retaliation cases. Jorge [v. Rumsfeld], 404 F.3d [556, ] 558-59 [(1st Cir. 2005)]. Rather, a would-be plaintiff must first exhaust his administrative remedies. This task embodies “two key components: the timely filing of a charge with the EEOC and the receipt of a right-to-sue letter from the agency.” Id.

748 F.3d 387, 389-90 (1st Cir. 2014). In his response to the show cause order, which incorporates by reference his objection to the Board's motion to dismiss, plaintiff argues that because his retaliation claims arise under Titles II and III of the ADA rather than Title I, he was under no obligation to exhaust administrative remedies before bringing those claims in court.

         Of course, plaintiff's retaliation claims do not arise under Titles II and III; like all ADA retaliation claims, they arise under 42 U.S.C. § 12203, which was enacted under Title V of the ADA.[2] That said, the distinction that plaintiff draws between Title I of the ADA and Titles II and III does have some bearing on the exhaustion question.

         In Rivera-Díaz, the plaintiff brought a Title I disability discrimination claim against his former employer, and a Title V retaliation claim that was based upon allegations that his former employer had taken adverse actions against him in response to his having asserted his rights under Title I of the ADA.[3] The court held that both the discrimination claim and the retaliation claim were subject to the exhaustion requirement. Thus, the rule of Rivera-Díaz is that when the protected conduct in an ADA retaliation claim is the exercise or vindication of a right granted by Title I, which pertains to disability discrimination by employers, the Title V retaliation claim is subject to the same exhaustion requirement as a Title I discrimination claim. That is, such a retaliation claim must be adjudicated through the EEOC before it may be brought in court. See, e.g., Kelly v. N. Shore-Long Island Jewish Health Sys., 166 F.Supp.3d 274, 288 (E.D.N.Y. 2016); Knaub v. Tulli, 788 F.Supp.2d 349, 359 (M.D. Pa. 2011).

         But when a plaintiff claims to have been retaliated against for exercising or vindicating a right granted by Title II (disability discrimination in the provision of services by a public entity) or Title III (disability discrimination in the provision of public accommodations and services operated by private entities), which do not concern disability discrimination by employers, courts have not required exhaustion through the EEOC. See Cable v. Dep't of Devt'l Servs., 973 F.Supp. 937, 940 (C.D. Cal. 1997) (“Plaintiff's Title V claims rely on acts and practices Plaintiff alleges were unlawful under Title II of the ADA. Thus, Plaintiff was not required to exhaust administrative remedies before filing this action.”) rev'd on other grounds, 54 Fed.Appx. 263 (9th Cir. 2002); McInerney v. Rensselaer Poly. Inst., 505 F.3d 135, 139 (2d Cir. 2007) (“[W]e hold that there is no administrative-exhaustion requirement for ADA Title III claims or Title V claims predicated on asserting one's rights under Title III).

         With the foregoing principles in mind, the court begins with the retaliation claim plaintiff asserts in Count VIII, and then turns to the retaliation claim he asserts in Count IV.

         A. Count VIII

         In Count VIII, plaintiff asserts that he was subjected to two different sets of adverse actions by the Trustees and DHMC because he engaged in the protected conduct of suing them in a previous case in this court, 12-cv-40-LM. See FAC ¶¶ 131, 140. In 12-cv-40-LM, Dr. Isaacs asserted an ADA discrimination claim against the Trustees, DHMC, and Mary Hitchcock Memorial Hospital, and his claim was strictly limited to discrimination in employment, under Title I.[4] Thus, before he can bring the retaliation claim he asserts in Count VIII in this court, he must exhaust his administrative remedies. See Rivera-Díaz, 748 F.3d at 389. He has not alleged that he has done so. Accordingly, the Trustees are entitled to dismissal of Count VIII.[5] Moreover, while DHMC has not moved to dismiss Count VIII, the foregoing analysis applies with equal force to plaintiff's retaliation claim against DHMC. Thus, as to DHMC, Count VIII is dismissed sua sponte. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15, 23 (1st Cir. 2014) (explaining that sua sponte dismissal is appropriate “where ‘it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile'”) (quoting Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002)).

         Plaintiff attempts to avoid the reach of Rivera-Díaz by arguing that Count VIII should not be dismissed because he pled Title III retaliation against an educational institution, which does not require administrative exhaustion. Plaintiff is mistaken. First of all, as the court has explained, there is no such thing as Title III exhaustion. But, more importantly, Count VIII asserts a claim that the Trustees retaliated against plaintiff for suing them in 12-cv-40-LM, and the complaint in 12-cv-40-LM asserts a claim against the Trustees and DHMC, under Title I, for disability discrimination in employment. Nowhere in the complaint in 12-cv-40-LM did plaintiff assert a Title III claim against any defendant. Because plaintiff is not now claiming, in Count VIII, that the Trustees or DHMC retaliated against him for asserting any right granted by Title III, the rule stated in McInerney, 505 F.3d at 139, does not excuse him from the exhaustion requirement.

         Both the Trustees and DHMC are entitled to dismissal of the ADA retaliation claims that plaintiff asserts against them in Count VIII due to plaintiff's failure to exhaust the administrative remedies available to him. Moreover, those claims are, with one exception, dismissed with prejudice. The acts of retaliation alleged in Count VIII include: (1) “poison[ing] the well with the Board and needlessly push[ing] for a censure, ” FAC ¶ 133; and (2) rejecting applications for admission to the DHMC residency program that he filed in 2013, 2014, 2015, and 2016, see FAC ¶ 141. With the possible exception of the most recent rejection of a residency application, none of the acts of purported retaliation that plaintiff alleges in support of Count VIII took place recently enough for plaintiff to file a timely charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); N.H. Rev. Stat. Ann. (“RSA”) 354-A:21, III; Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)). The precise timing of plaintiff's most recent residency application is not entirely clear. In paragraph 141 of his FAC, plaintiff alleges that he “applied for federal residency at DHMC in 2013, 2014, 2015, and 2016, ” and in paragraph 145, he alleges that “Dartmouth actively rejected [his] applications on multiple occasions between 2013 and 2017.” Thus, depending upon the date of plaintiff's most recent rejection, there remains a possibility that a retaliation claim based upon the most recent rejection could still be administratively exhausted. Accordingly, Count VIII is dismissed with prejudice, except that plaintiff may, if possible, assert a properly exhausted ADA retaliation claim based upon the rejection of his 2016 application to DHMC for a residency.

         B. Count IV

         In Count IV, plaintiff claims that he was subjected to three different adverse actions by the Board because, among other things, he asked the Board for a reasonable accommodation that would have allowed him to participate in his disciplinary hearing. Asking for a reasonable accommodation from a public entity is conduct directed to vindicating a right granted by Title II of the ADA. Thus, plaintiff was not obligated to exhaust administrative remedies before bringing the retaliation claim he asserts in Count IV. See Cable, 973 F.Supp. at 940. Accordingly, the court cannot dismiss Count IV on the basis of plaintiff's failure to exhaust.

         II. The Board's Motion to Dismiss

         This case includes three claims against the Board: (1) the ADA discrimination claim plaintiff asserts in Count III; (2) the ADA retaliation claim he assert in Count IV; and (3) the claim for prospective injunctive relief he asserts in Count V. The Board moves to dismiss Counts III, IV, and V, arguing that the court lacks subject matter jurisdiction over the claims asserted therein, see Fed.R.Civ.P. 12(b)(1), and that even if the court has subject matter jurisdiction, plaintiff has failed to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6). In addition, the Board asks the court to dismiss Count I, sua sponte. In this section, the court begins with a brief recitation of the relevant factual allegations and then considers, in turn, each of the three claims the Board moves to dismiss as well as the claim the Board urges the court to dismiss on its own motion.

         A. Background

         The court assumes the reader's familiarity with its previous order in this case, document no. 34, and provides a truncated recitation of the relevant facts.

         In March of 2012, DHMC dismissed Dr. Isaacs from his residency. In its letter of dismissal, DHMC identified four grounds for its action, including Dr. Isaacs' “omission of material information from [his] Electronic Residency Application Service (ERAS) application [and] falsification of information provided to the New Hampshire Board of Medicine.” Compl., Ex. K (doc. no. 3-11), at 1. The letter went on to describe the factual basis for its charges of omission and falsification:

[Y]our ERAS application lacked information regarding your prior residency training in Arizona as well as time served as a medical student at the University of Southern California. You also failed to divulge your dismissal from medical school at USC in information provided to the New Hampshire Board of Medicine in support of a NH training license.


         Shortly after DHMC dismissed Dr. Isaacs, it notified the Board of its action and informed the Board of its belief that Dr. Isaacs had omitted material facts from the license application he had submitted to the Board. “As a result of [the] information [the Board received from DHMC], the Board commenced an investigation to determine whether [Dr. Isaacs] committed professional misconduct pursuant to RSA 329:17, VI and RSA 329:18.” Def.'s Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at 1.

         In October of 2013, the Board notified Dr. Isaacs that a hearing had been scheduled for February 5, 2014. According to the decision the Board issued after Dr. Isaacs's hearing, its “Notice [of Hearing] informed [Dr. Isaacs] . . . that failure to appear [could] result in the hearing being held in absentia with disciplinary sanctions imposed without further notice or opportunity to be heard.” Def.'s Mot. to Dismiss, Ex. 1 (doc. 7-1), at 2. On January 29, 2014, Dr. Isaacs notified the Board that he had filed suit against it in federal court in Pennsylvania and asked the Board to stay his hearing, presumably pending the outcome of his action in Pennsylvania. He also stated that he was “unable to drive to NH for medical reasons, ” Compl., Ex. R (doc. no. 3-18), at 1, and asked to appear at his hearing remotely, by telephone or video conference, in the event that his request for a stay was denied. Dr. Isaacs did not identify the “medical reasons” that prevented him from driving to New Hampshire. The Board denied Dr. Isaacs's request for a stay and also denied his request to appear remotely. On the morning of the day of his hearing, which was scheduled for 1:00 p.m., Dr. Isaacs sent the Board an e-mail indicating that he would not be attending because it was impossible for him to drive to New Hampshire from Pennsylvania, under inclement weather conditions, in the rental car he was then using. The hearing went on as scheduled, without Dr. Isaacs. According to the Board's Final Decision and Order (“Order”), which is dated March 11, 2014, “Attorney Jeff Cahill appeared as hearing counsel.” Def.'s Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at 4.

         The Board's Order was signed by Penny Taylor, in her capacity as Administrator and Authorized Representative of the New Hampshire Board of Medicine. In it, the Board noted that DHMC's dismissal of Dr. Isaacs resulted in the cancellation of his medical license as a matter of law. But, it also issued a reprimand, based upon its findings that when Dr. Isaacs applied for his license, he “knowingly made a false statement and further failed to disclose a material fact.” Def.'s Mot. to Dismiss, Ex. 1 (doc. no. 7-1), at 8-9.[6]

         B. Count III: ADA Discrimination

         In Count III, plaintiff claims that the Board violated Title II of the ADA by: (1) “requir[ing] a disabled individual to drive through 8” of snow from Philadelphia, ” FAC ¶ 80, to attend his hearing rather than granting him the reasonable accommodation of a remote appearance; (2) failing to include evidence he had e-mailed before the hearing; and (3) failing to provide him with timely notice of its decision. For those purported ADA violations, “plaintiff seeks all lawful damages, costs, attorneys fees[, ] interest[, ] and an Order deleting, retracting, or otherwise removing the Board's decision from publication or dissemination.” FAC ¶ 84. While plaintiff claims to be disabled, his complaint includes no factual allegations about the impairment that purportedly disables him.

         The nature of the remedy that plaintiff seeks is at the heart of the Board's argument that the court lacks subject matter jurisdiction over plaintiff's ADA claims. The Board construes plaintiff's request for an order “deleting, retracting, or otherwise removing the Board's decision from publication, ” FAC ¶¶ 84, 92, 100, as an attempt to have this court stand in review of that decision, which, the Board argues, is impermissible under the Rooker-Feldman doctrine. See Bettencourt v. Bd. of Reg. in Med., 721 F.Supp. 382, 384 (D. Mass. 1989) (“A federal court has no jurisdiction to review a decision of a state administrative agency that is judicial in nature.”) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)).

         Plaintiff counters by arguing that the Rooker-Feldman doctrine is inapplicable here because he “is not seeking to overturn the Board's decision or to have this Court review the Board's Order.” Pl.'s Obj. (doc. no. 37) ¶ 11. Rather, according to plaintiff, he “seeks monetary damages to make him whole for the Board's violations of the ADA, and/or an Order minimizing the detrimental effects of the publication of the erroneous, extraneous and defamatory language needlessly contained in the Order.” Id. However, in his FAC, plaintiff states that he “is not seeking compensation in the present action.” FAC ¶ 19 (emphasis added). He “clarifies” that statement in a footnote:

Although plaintiff wishes to make it clear that he is not actively seeking monetary compensation, and instead seeks equitable relief to rescind and retract the Board Decision and be re-admitted to Dartmouth, he is not waiving his claims to monetary compensation if it is awarded by Judge or Jury. For purposes of maintaining an active case or controversy at law, plaintiff seeks money damages, and only wishes to make clear here that he has not filed the suit for that base purpose, but instead to correct the record and return to medicine.

FAC ¶ 19 n.3.

         As a preliminary matter, the court cannot see how a request for the deletion, retraction, or removal of the Board's decision is not also a request to overturn that decision. Similarly, given that one of the three acts of purported discrimination that plaintiff identifies in Count III involves the manner in which the Board handled evidence while adjudicating his case, [7]plaintiff is clearly asking the court to review the Board's order. Indeed, it seems self-evident that for the court to grant plaintiff the equitable relief he seeks, the court would have to determine that the Board would have ruled in plaintiff's favor had it not committed the ADA violations that plaintiff alleges. But, the court could not do that without reviewing the Board's decision. For that reason, to the extent plaintiff asks the court to order the deletion, retraction, or removal of the Board's decision, Count III is “an attempt by plaintiff to seek appellate review, ” Bettencourt, 721 F.Supp. at 384, of the Board's Order. Such a review is precluded by the Rooker-Feldman doctrine. See id.

         The court's conclusion that plaintiff's ADA discrimination claim is, at least in part, an impermissible bid for appellate review is reinforced by the nature of the equitable relief plaintiff seeks. In Dufresne v. Veneman, the court of appeals pointed out that “injunctive relief under the ADA is limited to ‘reasonable accommodations, '” 114 F.3d 952, 954 (9th Cir. 1997) (per curiam) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)). Here, Count III is a claim that the Board violated the ADA by failing to provide plaintiff with a reasonable accommodation for his disability. Yet, he does not ask the court to order the Board to provide him with a reasonable accommodation; he asks the court to order the Board to retract its decision against him. That Count III seeks equitable relief that is not available under the ADA is further support for the court's conclusion that to the extent that plaintiff requests such relief, the claim for which he seeks it is a request for appellate review, not an ADA claim.

         However, plaintiff also asks for monetary damages, and to the extent that he seeks that form of relief, the foregoing analysis does not apply, and the court would appear to have subject matter jurisdiction. But that is not enough to save Count III. As to the part of plaintiff's ADA discrimination claim over which the court has subject matter jurisdiction, the Board is entitled to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,556 U.S. 662, 678 ...

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