                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-2055
                                    _____________

                            REBECCA ANN SCHNEIDER,

                                        Appellant

                                           v.

   DARSHAN SHAH, Special Accommodations Officer; FAIRLEIGH DICKINSON
    UNIVERSITY; RITA DE LILLO, Assistant Director Paralegal Studies Program
                             ____________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                                  (No. 2:11-cv-02266)
                       District Judge: Hon. Stanley R. Chesler

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 15, 2012

           Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.


                               (Filed: December 4, 2012 )

                                     ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

      Plaintiff Rebecca Schneider appeals the District Court‟s grant of summary

judgment in favor of Fairleigh Dickinson University (“the University”), the University‟s
Special Accommodations Officer, Darshan Shah, and the University‟s Assistant Director

of the Paralegal Studies Program, Rita DeLillo (collectively, “the defendants”).

Schneider sued the defendants for violations of the Americans with Disabilities Act

(“ADA”) and New Jersey‟s Law Against Discrimination (“NJLAD”). For the reasons

that follow, we will affirm the District Court‟s grant of summary judgment.

                                             I.

      We write solely for the benefit of the parties and recite only those facts relevant to

our disposition. Schneider‟s lawsuit arose from her participation in Fairleigh Dickinson

University‟s Paralegal Studies Program. She enrolled in the program in the fall of 2010.

On October 21, 2010, Schneider received and signed a copy of the “Paralegal Studies

Program Guidelines,” which detailed the program‟s attendance policy and the procedure

for requesting special accommodations. Schneider eventually failed two of her courses,

Estates, Trusts, and Wills (“Estates”), and Corporate Law. She failed Estates due largely

to her poor grade on the final exam and Corporate Law due to excessive absences. The

University notified Schneider of the Estates failure on November 11, 2010, and the

Corporate Law failure on March 28, 2011. Schneider describes the notification of her

failure in Corporate Law as the moment “that she decided to immediately and formally

seek special accommodations.” Schneider Br. in Opp‟n to Summ. J. 5.

      On March 28, 2011, Schneider gave her father and attorney, Elias Schneider, a

$10,500 retainer check. Three days later, on March 31, 2011, Schneider signed a retainer

agreement, in which she agreed that Mr. Schneider would represent her in an ADA and

NJLAD “legal matter.” That same day, Mr. Schneider first communicated Schneider‟s

                                             2
disabilities to the University. The letter detailed back injuries that Schneider sustained in

an October 2000 car accident and attributed any excessive absences to her need for

caution during the winter in light of her physical condition. A second letter from Mr.

Schneider, dated April 5, 2011, disclosed Schneider‟s mental health issues, detailed her

inability to sit for long periods of time, appealed her grade, and stated that, if resolution

were not possible, “I will have no option but to resort to the US Federal District Court in

an action for violations of Americans [w]ith Disabilities Act as well [as] claims under the

NJ Law Against Discrimination. It will not be the first time I have had to file such a

claim.” Supplemental Appendix 188.

       A series of communications between Schneider, Mr. Schneider, and various

officials at the University ensued over the next several weeks. The Schneiders and the

University‟s officials disagreed over the documentation necessary to establish

Schneider‟s disability. On April 19, 2011, the University‟s General Counsel requested

that Schneider redirect all correspondence to the General Counsel‟s office in light of the

threat of litigation. On April 21, 2011, Schneider filed suit. Schneider ultimately

completed the Paralegal Studies Program four months later, in August 2011. In her brief

in opposition to summary judgment, Schneider conceded that the University ultimately

resolved “by way of accommodations” the “two essential parts of the case”— her failures

in Estates and Corporate Law. Schneider Br. in Opp‟n to Summ. J. 4. In particular, the

University “directed that Rebecca‟s grade in Corporate law be changed from the

incomplete or failure to „B-‟” and allowed Schneider extended test-taking time, a



                                               3
distraction-free test taking environment, preferential seating, and breaks in between long

class sessions when she retook Estates. Schneider Br. in Opp‟n to Summ. J. 8-9.

       Schneider‟s amended complaint, filed April 28, 2011, alleged one count of failure

to provide reasonable accommodations in violation of the ADA and one count of

discriminatory treatment in violation of the NJLAD. Schneider sought a mandatory

injunction, monetary damages, and attorney‟s fees. After discovery, the defendants

moved for summary judgment on both counts. The District Court granted the motion and

entered judgment in favor of the defendants. The court understood Schneider‟s brief in

opposition to summary judgment to allege three types of ADA and NJLAD violations:

(1) “violations based on unreasonable delay”; (2) “violations based on failure to

participate in the „interactive process‟ by communicating with Plaintiff‟s father/counsel”;

and (3) “violations based on demands for documentation.” Schneider Appendix (“App.”)

8. The court held that Schneider‟s decision to file suit terminated the University‟s

obligation to participate in an interactive process and assessed the University‟s response

in the twenty-two days between notification and filing. The court concluded that “[t]he

undisputed evidence is that the University acted promptly to remedy Plaintiff‟s

grievances and to accommodate her, so that Plaintiff swiftly achieved her desired

educational goal.” App. 16.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367.

We have jurisdiction pursuant to 28 U.S.C. § 1291.



                                             4
       This Court exercises plenary review over an order granting summary judgment

and applies “the same standard that the lower court should have applied.” Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). “Summary judgment is

appropriate „if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.‟” United States v. Donovan,

661 F.3d 174, 184-85 (3d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). The party that seeks

summary judgment must demonstrate “„the absence of a genuine issue of material fact.‟”

Id. at 185 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If the moving

party carries this initial burden, „the nonmoving party must come forward with specific

facts showing that there is a genuine issue for trial‟ and do more than „simply show that

there is some metaphysical doubt as to the material facts.‟” Id. (quoting Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A material fact is one

that “would affect the outcome of the suit as determined by the substantive law.” Gray v.

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A court ruling on a motion

for summary judgment will “„view the facts in the light most favorable to the nonmoving

party and draw all inferences in that party's favor.‟” Farrell, 206 F.3d at 278.

                                             III.

       Schneider seeks reversal of the District Court‟s grant of summary judgment. We

understand Schneider‟s appeal to this Court as primarily a request for attorney‟s fees,

along with a challenge to the District Court‟s understanding of a “reasonable

accommodation” and “interactive process” as those terms relate to any remaining claims

for relief. Schneider also seeks a different disposition of her NJLAD claim.

                                              5
                                              A.

       Schneider asserts that the District Court ignored the New Jersey Supreme Court on

a matter of state law by declining to award attorney‟s fees. Schneider argues that New

Jersey has adopted the catalyst theory of attorney‟s fees for NJLAD suits. Under that

theory, Schneider argues, she is the prevailing party because the litigation was the

catalyst for the relief received. We do not agree.1

       The NJLAD permits an award of attorney‟s fees to the prevailing party. N.J. Stat.

Ann. § 10:5-27.1. To determine the prevailing party under the catalyst theory, courts

look not to a plaintiff‟s success in obtaining a final judgment but instead “to whether a

plaintiff‟s lawsuit acted as a catalyst that prompted [a] defendant to take action and

correct an unlawful practice.” Mason v. City of Hoboken, 951 A.2d 1017, 1030 (N.J.

2008). To establish that the lawsuit acted as the catalyst for the defendant‟s corrective

action, the plaintiff must demonstrate: “(1) a „factual causal nexus between plaintiff‟s

litigation and the relief ultimately achieved‟; and (2) „that the relief ultimately secured by

plaintiffs had a basis in law.‟” Id. at 1030, 1032 (quoting Singer v. State, 472 A.2d 138,

1
  Defendants argue that Schneider waived her right to appeal the issue of attorney‟s fees
because she never moved for summary judgment on that basis. Though we agree that
Schneider provided no argument as to why she is a prevailing party entitled to attorney‟s
fees, we will nonetheless review her claim on the merits because her amended complaint
sought attorney‟s fees and because she advanced the catalyst theory of attorney‟s fees,
however briefly, in her brief in opposition to summary judgment. See Northview Motors,
Inc. v. Chrysler Motors Corp., 227 F.3d 78, 90 n.5 (3d Cir. 2000) (declining to hold that
defendant waived argument by not moving for summary judgment on that basis); Huber
v. Taylor, 469 F.3d 67, 75 (3d Cir. 2006) (concluding that party did not waive right to
raise issue on appeal when issue was “inherent in the parties‟ positions throughout [the]
case”).


                                              6
142 (N.J. 1984)). To evaluate the presence or absence of a causal nexus, courts will

conduct a “fact-sensitive inquiry on a case-by-case basis” and assess “the reasonableness

of, and motivations for, an agency‟s decisions.” Id. at 1033. The basis in law prong

provides “a check against groundless or harassing litigation.” Jones v. Hayman, 13 A.3d

416, 427 (N.J. Super. App. Div. 2011). Courts will “consider plaintiffs‟ success in

obtaining interim relief, as well as in defending against defendants‟ efforts for summary

disposition of the litigation as a matter of law.” Id. For instance, a plaintiff who obtains

a preliminary injunction and survives a motion to dismiss will have a strong argument

under the basis in law prong. See id.

       The New Jersey Supreme Court has not yet applied the catalyst theory to the

NJLAD. Even assuming arguendo that the theory applies to the award of attorney‟s fees

under the NJLAD, Schneider‟s claim cannot succeed. Schneider does not explain why

the catalyst theory would allow the court to award attorney‟s fees in this case beyond the

general assertion that “[t]he New Jersey LAD looks to see if the suit was the catalyst for

the obtaining of those benefits. That is where the focus of the court below should have

been.” Schneider‟s Br. 21. First, we observe that the District Court properly omitted

attorney‟s fees from its analysis because Schneider did not cross-move for summary

judgment below.2 Second, we cannot agree that Schneider‟s lawsuit acted as the catalyst


2
  Though Schneider set forth the legal standards that govern the catalyst theory in her
brief in opposition to summary judgment, that submission never applied the relevant case
law to the facts of the case. Instead, she observed that “[i]f plaintiff were currently
pursuing her own motion for summary judgment, Plaintiff would [be] entitled [to]
judgment liability under LAD and to fee shifting under the Law Against
Discrimination . . .” Schneider‟s Br. in Opp‟n to Summ. J. 18.
                                              7
for the University‟s actions. Schneider first notified the University of her disability on

March 31, 2011. Her father first threatened litigation on April 5, 2011. She filed suit on

April 21, 2011. The University requested additional information and ultimately

accommodated Schneider by allowing her to retake Estates with accommodations and

changing her grade in Corporate Law. Schneider provides no evidence that the threat of

pending litigation, rather than a timely response to her newly disclosed disabilities,

motivated the University‟s prompt response.

                                             B.

       Schneider next disputes the District Court‟s conclusion that “requested

modifications that conflict with educational policies that have been accepted in writing,

which are requested after-the-fact and which therefore constitute a retrospective attempt

to change the agreement already accepted, and which relate to a period in which no notice

of disability has been given, cannot be reasonable.” App. 15. She also contends that the

University failed to engage in a good faith, interactive process as required by the ADA

and NJLAD.

       “A school may not discriminate on the basis of a student's disability nor deny a

reasonable accommodation to a disabled student.” Regents of Mercersburg Coll. v.

Republic Franklin Ins. Co., 458 F.3d 159, 166 (3d Cir. 2006). When a plaintiff alleges a

failure to accommodate under Title III of the ADA, she must establish “(1) that the

plaintiff is disabled and otherwise qualified academically, (2) that the defendant is a

private entity that owns, leases or operates a place of public accommodation (for ADA



                                              8
purposes) . . . , and (3) „that the defendant failed to make reasonable modifications that

would accommodate the plaintiff's disability without fundamentally altering the nature of

the public accommodation.‟” Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir.

2006); see also Victor v. State, 4 A.3d 126, 142-43 (N.J. 2010) (analogizing reasonable

accommodations under the NJLAD to those required by the ADA).

       Schneider asserts that “case law is replete with just such cases of „after the fact

requests‟ for reasonable accommodations.” Schneider Br. 22. In furtherance of this

claim, Schneider relies on cases that do not support her argument. See, e.g., Frank v.

Univ. of Toledo, 621 F. Supp. 2d 475, 488 (N.D. Ohio 2007) (holding that plaintiff did

not make a reasonable request for an accommodation until “after the exam results were

communicated to him” and concluding that subsequent attempts to accommodate plaintiff

were reasonable).3 More importantly, the University promptly acceded to Schneider‟s

after the fact requests for accommodation. The record demonstrates that the University

accommodated her by allowing her to retake her Estates course with special

accommodations and by altering her grade in Corporate Law. Schneider concedes that


3
  Schneider relies on three additional cases in support of this proposition, all inapposite.
See Bowers v. Bethany Med. Ctr., 959 F. Supp. 1385, 1391 (D. Kan. 1997) (holding that
employer need not provide plaintiff with third opportunity to pass mandatory computer
examination when “her inability to pass the test in two takes had no nexus to her
disability”); Schroll v. Bd. of Educ. Champaign Cmty. Unit Sch. Dist. #4, No. 06-2200,
2007 WL 2681207, at *1-3 (C.D. Ill. Aug. 10, 2007) (adjudicating lawsuit filed pursuant
to the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et seq., that
involved an individualized education program that allowed for retesting); Kushner v.
NationsBank of Texas, N.A., No. 3:95-CV-2562-BF, 1998 WL 512945, at *8 (N.D. Tex.
Aug. 12, 1998) (holding, in case involving plaintiff‟s failure on test involved in a bank‟s
analyst training program, that plaintiff had not established disability and thus not
reaching the issue of reasonable accommodation).
                                              9
the University ultimately provided her with reasonable accommodations. See Schneider

Br. in Opp‟n to Summ. J. 4 (“The essence of the suit was the seeking of

relief/accommodations from plaintiff[‟s] not passing two segments of the program,

specifically Estates Wills and Trusts . . . and Corporate Law . . . . These two essential

parts of the case have, in fact, now been resolved by way of accommodations provided by

defendants.”); Schneider Br. 3 (stating that plaintiff “received 95% of what [she] w[as]

looking for if you do not include counsel fees”).    She obtained her paralegal certificate

in August 2011, just five months after she notified the University of her disability. In

light of the University‟s actions upon notification of Schneider‟s disability, we hold that

the University provided reasonable accommodations.

       Schneider also contends that her request for accommodations triggered the

University‟s obligation to engage in an interactive process geared toward providing

reasonable accommodations. A plaintiff may demonstrate a defendant‟s failure to engage

in a good faith, interactive process by showing that “„(1) the [defendant] knew about the

[plaintiff‟s] disability; (2) the [plaintiff] requested accommodations or assistance for his

or her disability; (3) the [defendant] did not make a good faith effort to assist the

[plaintiff] in seeking accommodations; and (4) the [plaintiff] could have been reasonably

accommodated but for the [defendant‟s] lack of good faith.‟” Colwell v. Rite Aid Corp.,

602 F.3d 495, 504 (3d Cir. 2010) (quoting Williams v. Phila. Hous. Auth. Police Dep‟t,

380 F.3d 751, 772 (3d Cir. 2004)). The District Court rejected Schneider‟s argument that

the University failed to engage in an interactive process, concluding that



                                              10
                 [t]he undisputed evidence is that the University acted
                 promptly to remedy Plaintiff‟s grievances and to
                 accommodate her, so that Plaintiff swiftly achieved her
                 desired educational goal . . . . After notifying the University
                 of her disability on March 31, 2011, Plaintiff waited all of 22
                 days before filing suit in this Court — and then has the nerve
                 to accuse the University of failing to engage in good faith in
                 an interactive process.        The evidence shows that the
                 University worked to accommodate her needs such that she
                 was able to complete her program in June of 2011, but she
                 continued to prosecute this action — to what end is unclear.

App. 16. We agree. The record demonstrates that the University made a good faith

effort to engage with Schneider after notification of her disability and did, in fact,

accommodate her.

                                               C.

       Finally, Schneider contests the District Court‟s disposition of her NJLAD claim.

She argues that the District Court should have remanded the NJLAD claim to state court

once it “dismissed” the ADA claim because, once the federal claim was dismissed, the

District Court no longer had jurisdiction over the state claim. We review a District

Court‟s exercise of jurisdiction over state law claims for abuse of discretion. Cf. Kach v.

Hose, 589 F.3d 626, 634 (3d Cir. 2009) (reviewing decision not to exercise supplemental

jurisdiction).

       “The decision to retain or decline jurisdiction over state-law claims is

discretionary.” Id. at 650; see also 28 U.S.C. § 1367(c) (providing that “[t]he district

courts may decline to exercise supplemental jurisdiction” under certain circumstances

(emphasis added)); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A

district court‟s decision whether to exercise . . . jurisdiction [over state-law claims] after

                                               11
dismissing every claim over which it had original jurisdiction is purely discretionary.”) .

Schneider alleged the same set of facts in support of her ADA and NJLAD claims and

sought nearly identical relief as to both claims. We conclude that the District Court did

not abuse its discretion by exercising supplemental jurisdiction over Schneider‟s NJLAD

claim.

                                             IV.

         For the foregoing reasons, we will affirm the judgment of the District Court.




                                              12
