                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2002

Emerson v. Thiel College
Precedential or Non-Precedential: Precedential

Docket No. 01-1699




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Recommended Citation
"Emerson v. Thiel College" (2002). 2002 Decisions. Paper 384.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/384


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PRECEDENTIAL

       Filed July 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 01-1699

JOHN M. EMERSON,
       Appellant

v.

THIEL COLLEGE; RICK BROWN;
RICK BROWN CONCRETE & MASONRY COMPANY;
MARTHA HARTLE MUNSCH; JOAN HEALD;
C. CARLYLE HAAYLAND; NANCY SEDERBERG;
GERALDINE MOORE; BRUCE ARMITAGE;
BONNIE MCCLAIN; JOYCE KEENAN; TIM ZGONC;
MARY JO YUSKO-HOWSER; SUSAN BRECKENRIDGE;
JUDY NEWTON; TOM NICHOLS; SHERRY LYNN COWAN;
MERVIN NEWTON; MARK DELMARAMO;
EMERSON HEALD; LINDA KAHLER; FRANK CONNELY

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil No. 98-cv-00227E)
District Judge: Honorable Sean J. McLaughlin

Submitted Under Third Circuit LAR 34.1(a)
May 14, 2002

BEFORE: RENDELL, ALDISERT and GREENBERG,
Circuit Judges

(Filed: July 10, 2002)




       John M. Emerson (Pro Se)
       124 Fifth Avenue
       Corry, PA 16407
       Martha H. Munsch, Esq.
       Reed, Smith
       435 Sixth Avenue
       Pittsburgh, PA 15219
        Counsel for Appellees Thiel College,
       Martha Hartle Munsch,
       Joan Heald, C. Carlyle Haayland,
       Nancy Sederberg, Geraldine Moore,
       Bruce Armitage, Bonnie McClain,
       Joyce Keenan, Tim Zgonc,
       Mary Jo Yusko-Howser,
       Susan Breckenridge, Judy Newton,
       Tom Nichols, Sherry Lynn Cowan,
       Mervin Newton, Mark Delmaramo,
       Emerson Heald, Linda Kahler, and
       Frank Connely
       Louis C. Long, Esq.
       Meyer, Darragh, Buckler, Bebenek
        & Eck
       2000 The Frick Building
       Pittsburgh, PA 15219
        Counsel for Appellees Rick Brown
       and Rick Brown Concrete &
       Masonry Company

                                2


OPINION OF THE COURT

PER CURIAM:

Appellant John M. Emerson, proceeding pro se, appeals
the order of the District Court dismissing his complaint
against Thiel College ("Thiel"), Rick Brown Concrete &
Masonry Company, an outside contractor for Thiel (the
"Masonry Company"), Rick Brown and nineteen other
individuals, including Thiel’s former President, Vice
President of Academic Affairs, members of its faculty and
staff and outside legal counsel (the "individual college
defendants"). Emerson alleges violations of Title III of the
Americans with Disabilities Act, 42 U.S.C. SS 12181-12189
(the "ADA"), Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. S 794, and Title VII of the Civil Rights Act of
1964, 42 U.S.C. SS 2000e-2000e-17. For the reasons stated
below, we will affirm.

I.

Emerson enrolled in a five-week summer session at Thiel
in July of 1996. He took a writing course, in which he
received a grade of D+, and a humanities course, from
which he withdrew. In the fall of 1996, Emerson enrolled in
two computer courses, a math course and a public
speaking course. Due to an off-campus injury, Emerson
requested, and Thiel granted, leave to withdraw from his
classes for medical reasons. In January of 1997, Emerson
enrolled in math, computer, English composition and
history courses. He withdrew from all of these courses with
the exception of English composition, which he failed.
Emerson received a grade of A in a one credit swimming
class. At the end of the 1996-1997 school year, Emerson
had earned one credit. Thiel suspended Emerson due to his
failure to make satisfactory academic progress towards
completion of his graduation requirements. Although Thiel
allows suspended students to apply for readmission after
one semester, Emerson did not seek readmission.

Emerson avers in his amended complaint that he suffers
from quadriplegia, neurological impairments and other

                                3


disabilities. He states that Thiel and his professors failed to
accommodate his disabilities and provide the assistance he
needed to succeed in class. Emerson alleges, among other
things, that the faculty and staff failed to provide him
tutors and notetakers, a desk at the front of the class and
help with heavy objects, and that college officials failed to
supervise the faculty and staff. He also maintains that Thiel
failed to repair its sidewalks and install proper doors and
ramps. Emerson seeks declaratory and injunctive relief,
including reinstatement at Thiel, and damages.

In January of 1999, the individual college defendants,
Rick Brown and the Masonry Company moved to dismiss
Emerson’s amended complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted.1 After receiving a notice of
delinquency, on May 26, 1999, Emerson filed the last of his
briefs in response to the motions. On August 6, 1999,
following a hearing, the District Court granted the motions
with respect to the individual college defendants and Rick
Brown, and afforded Emerson ten days to replead his
claims against the Masonry Company.

Emerson failed to timely file a second amended complaint
and the District Court ordered him to do so by October 8,
1999 or show cause why his case should not be dismissed.
The Masonry Company also renewed its motion to dismiss.
In response to Emerson’s statement that he could not read
the court’s orders due to the type size, on October 29,
1999, the District Court afforded Emerson twenty days to
amend his complaint, denied the Masonry Company’s
motion and directed that all documents be produced in a
larger type size. On December 3, 1999, Emerson moved to
stay the case until February 7, 2000 because of injuries
allegedly sustained in two car accidents. The District Court
granted a stay until February 1 and extended its initial
discovery and motion deadlines.

On January 20, 2000, the Masonry Company moved the
court to set aside the stay and grant its motion to dismiss
_________________________________________________________________

1. As discussed below, the District Court ultimately dismissed the
complaint against Thiel for failure to prosecute and comply with its
orders. Thus, we set forth the procedural history in detail.

                                4


as Emerson had not amended his complaint in accordance
with the October 29 order. On February 9, 2000, Emerson
moved to extend the stay until February 16. The District
Court held a conference call with the parties and inquired
about Emerson’s medical condition. Based upon Emerson’s
statement that he would be able to participate in the
litigation, the District Court denied the pending motions
and ordered Emerson to file his second amended complaint
by March 5, 2000 or it would dismiss the Masonry
Company as a party.

Emerson filed a second amended complaint and Thiel
moved to strike it, contending that Emerson improperly
sought to replead his claims against the individual college
defendants and add new defendants. On May 19, 2000, the
Masonry Company moved to dismiss the complaint,
contending that Emerson failed to cure the deficiencies in
the original complaint. On June 20, 2000, Thiel moved for
summary judgment.

Emerson did not respond to the summary judgment
motion by the deadline in the case management order. On
August 17, 2000, the District Court ordered Emerson to do
so by September 11, 2000 and scheduled a hearing for
September 14, 2000. On September 14, Emerson moved to
stay the action until November 18, 2000 due to an injury.
The District Court ordered Emerson to provide a
physician’s letter confirming his medical condition by
October 24, 2000. Emerson moved for an extension of time
until November 10, 2000 to respond to the court’s order
and submitted a hospital discharge summary dated June of
2000. On November 9, 2000, he filed a doctor’s certificate
stating that he was able to return to work or school on
January 2, 2001.

On November 20, 2000, the District Court scheduled a
hearing on all pending motions for November 28. Emerson
failed to attend. In an order entered on December 15, 2000,
the District Court denied Emerson’s motions to stay and for
an extension of time as moot, granted the Masonry
Company’s motion to dismiss and granted Thiel’s motion to
strike the second amended complaint with respect to the
individual and new defendants. The District Court sua
sponte extended Emerson’s time to file a response to Thiel’s

                                5


summary judgment motion until January 10, 2001, and
ordered that it would construe a failure to respond as
consent to the relief requested.

On January 17, 2001, Emerson moved to stay the action
until February 22, 2001. The District Court ordered oral
argument on the motion and on whether the action should
be dismissed for failure to prosecute and to comply with its
orders. On February 20, 2001, after the hearing, the
District Court denied Emerson’s motion for a stay and
dismissed the complaint against Thiel with prejudice for
failure to prosecute. In the alternative, the District Court
granted Thiel’s motion for summary judgment. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.
S 1291.

II.

We first review the District Court’s order granting the
individual college defendants’ and Rick Brown’s motions to
dismiss for failure to state a claim. Our standard of review
is plenary. Menkowitz v. Pottstown Memorial Med. Ctr., 154
F.3d 113, 115 (3d Cir. 1998). A complaint will withstand an
attack under Federal Rule of Civil Procedure 12(b)(6) if the
material facts as alleged, in addition to inferences drawn
from those allegations, provide a basis for recovery. Id. at
124-25. In dismissing Emerson’s claims, the District Court
concluded that individuals cannot be held liable under Title
III of the ADA, S 504 of the Rehabilitation Act and Title VII
of the Civil Rights Act of 1964.

Whether individuals may be liable under Title III of the
ADA, which prohibits discrimination in places of public
accommodation, is an issue of first impression in the courts
of appeals. The statute provides in relevant part that:

       No individual shall be discriminated against on the
       basis of disability in the full and equal enjoyment of
       the goods, services, facilities, privileges, advantages, or
       accommodations of any place of public accommodation
       by any person who owns, leases (or leases to), or
       operates a place of public accommodation.

42 U.S.C. S 12182(a)(emphasis added). The regulations

                                6


under the statute provide that discrimination is prohibited
by any private entity that owns, leases (or leases to) or
operates a place of public accommodation, 28 C.F.R.
S 36.201(a), and that "private entity" means a person or
entity other than a public entity. 28 C.F.R. S 36.104. Thus,
the individual college defendants and Brown may be liable
under Title III if they own, lease or operate Thiel, a place of
public accommodation. See also 28 C.F.R. App. B. S 36.104
(discussing definition of private entity).2

To the extent Emerson contends that the individual
college defendants operate Thiel, in Neff v. American Dairy
Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995), the Court
of Appeals for the Fifth Circuit applied principles of
statutory construction and construed the term "operate,"
which the statute does not define, in accordance with its
ordinary meaning. The court set forth several dictionary
definitions, including "to control or direct the functioning
of " and "to conduct the affairs of." Id. Applying these
definitions, we hold that the individual college defendants
and Brown do not operate Thiel and thus are not subject to
individual liability under Title III of the ADA. 3

This result comports with decisions of other courts of
appeals holding that individuals are not liable under Titles
I and II of the ADA, which prohibit discrimination by
employers and public entities respectively. See , e.g., Garcia
v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir.
2001)(Title II); Butler v. City of Prairie Village, 172 F.3d 736,
744 (10th Cir. 1999)(Title I). See also Walker v. Snyder, 213
F.3d 344, 346 (7th Cir. 2000) ("the ADA addresses its rules
_________________________________________________________________

2. The parties do not dispute that Thiel is a place of public
accommodation.
3. In Neff, the court considered whether an entity had control over the
alleged discriminatory denial of access to a place of public
accommodation. Id. Neff could be construed as requiring an examination
of whether each of the individual defendants had control over the alleged
discriminatory denial of accommodations. We do not believe, however,
that Congress intended to impose personal liability upon each person
involved in Emerson’s education. Rather, as stated in Coddington v.
Adelphi Univ., 45 F. Supp. 2d 211, 217 (E.D.N.Y. 1999), the institution
has the power to make accommodations and thus it operates the place
of public accommodation and is the proper defendant.

                                7


to employers, places of public accommodation, and other
organizations, not to the employees or managers of these
organizations").

With respect to Emerson’s claims under S 504 of the
Rehabilitation Act, the Court of Appeals for the Second
Circuit, relying upon various district court decisions, has
ruled that individuals are not liable under the statute.
Garcia, 280 F.3d at 107. We have yet to address this
question. We recognize that the Rehabilitation Act and the
ADA generally are interpreted consistently. See 28 C.F.R.
S 36.103 (incorporating the standards applied under the
Rehabilitation Act into Title III).

Section 504 provides in relevant part that:

       No otherwise qualified individual with a disability . . .
       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 . . . .

29 U.S.C. S 794(a). "Program or activity" is defined in part
as all of the operations of a college or university. Id.
S 794(b)(2)(A). Section 504 applies to federal financial
assistance recipients. United States Dep’t of Transp. v.
Paralyzed Veterans of America, 477 U.S. 597, 605-06
(1986). It is undisputed that Thiel is the recipient of federal
financial assistance. Because the individual defendants do
not receive federal aid, Emerson does not state a claim
against them under the Rehabilitation Act.4 This result is
consistent with decisions finding no individual liability
under Title IX of the Education Amendments of 1972, 20
U.S.C. S 1681(a), which prohibits discrimination on the
basis of sex by an education program or activity receiving
federal funding. See, e.g., Smith v. Metropolitan Sch. Dist.,
128 F.3d 1014, 1018-19 (7th Cir. 1997).
_________________________________________________________________

4. Relying upon language in Paralyzed Veterans, Emerson argues that
the individual college defendants may be liable because they are "in a
position to accept or reject" funding. See id . at 606. The Supreme Court,
however, did not address individual liability in Paralyzed Veterans. It
considered whether an entity was a recipient under Section 504.
                                8


Finally, the District Court properly granted the motions
to dismiss with respect to Emerson’s Title VII claims. Title
VII prohibits unlawful employment practices by employers.
42 U.S.C. S 2000e-2(a). Emerson does not aver that any of
the defendants employed him. In addition, individual
employees are not liable under Title VII. Sheridan v. E.I.
DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d
Cir. 1996)(en banc).5

III.

The District Court dismissed with prejudice Emerson’s
remaining claims against Thiel for failure to prosecute or to
comply with its orders pursuant to Federal Rule of Civil
Procedure 41(b). We review such an order for an abuse of
discretion. Adams v. Trustees of the N.J. Brewery
Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.
1994). While we defer to the District Court’s discretion,
dismissal with prejudice is only appropriate in limited
circumstances and doubts should be resolved in favor of
reaching a decision on the merits. Id.

To determine whether the District Court abused its
discretion, we evaluate its balancing of the following
factors: (1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure to
meet scheduling orders and respond to discovery; (3) a
history of dilatoriness; (4) whether the conduct of the party
or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which
entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense. Poulis v. State
Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

With respect to Emerson’s personal responsibility, the
District Court recognized that because Emerson is
proceeding pro se, his failure to comply with its orders
_________________________________________________________________

5. Because Emerson does not address in his brief the District Court’s
order dismissing his claims against the Masonry Company and granting
Thiel’s motion to strike, we will not address that order. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993)(failure to set forth an issue
in an appellate brief waives that issue on appeal).

                                9


could not be blamed on counsel. The District Court further
stated, and the record reflects, that there has been a
pattern of a failure to comply with the court’s orders based
upon unsubstantiated allegations of medical disability
resulting from various alleged accidents.

In considering the second Poulis factor, the District Court
found that it would be inherently prejudicial to Thiel to
allow the case to go to trial without considering its
summary judgment motion. Although it is unclear why the
court would not consider Thiel’s motion, Thiel argues that
it has suffered prejudice because it had to wait six months
to file its summary judgment motion due to the stay and
eight more months for argument because of Emerson’s
failures to respond to the motion. We agree that Thiel has
been prejudiced by the delays. The District Court was
unable to address Thiel’s summary judgment motion at its
November 28, 2000 hearing due to Emerson’s failure to
appear and it was necessary to conduct another hearing on
February 20, 2001.6

The procedural history of this case reflects continuous
dilatoriness, the third Poulis factor, and is set forth above.
While Emerson appears to argue that the District Court did
not consider his medical problems, the record reflects the
contrary. The District Court stayed the case initially
without requiring Emerson to substantiate his medical
condition. When Emerson sought additional stays, the
District Court afforded Emerson the opportunity to submit
documentation supporting that he was unable to proceed
for medical reasons. Emerson failed to do so.

With respect to whether Emerson’s conduct was willful or
in bad faith, the District Court was unable to conclude
whether Emerson acted in bad faith. The District Court
found, however, that Emerson’s conduct in failing to
comply with the court’s orders and in dragging the case out
was willful and not merely negligent or inadvertent. The
record supports this conclusion.
_________________________________________________________________

6. Although Thiel’s counsel stated at the February 2001 hearing that
Emerson failed to appear for the second day of his deposition and
respond to written discovery, Thiel does not contend that it was
prejudiced by these failures.

                                10


The District Court found no effective alternative sanctions
to dismissal. It stated that an assessment of attorney’s fees
was not a serious consideration given Emerson’s financial
situation. Emerson proceeded in forma pauperis in District
Court. We agree that monetary sanctions would not be an
effective alternative.

Finally, the District Court concluded that Emerson’s
allegations with respect to Thiel are facially meritorious.
Thiel, however, plead in part that it made numerous
accommodations for Emerson. The meritoriousness factor is
neutral and not dispositive.

Balancing these factors, we do not find that the District
Court abused its discretion in dismissing Emerson’s case
for failure to prosecute and comply with its orders.
Emerson was afforded a stay and numerous extensions of
time. He was given the opportunity to substantiate that he
was unable to proceed for medical reasons and he failed to
do so. Given his behavior over the more than two years that
the case was pending, the District Court had no indication
that Emerson would prosecute his case as opposed to seek
additional stays.7

Accordingly, we will AFFIRM the District Court’s order
entered on February 21, 2001.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

________________________________________________________________

7. Based upon this conclusion, we find it unnecessary to address the
District Court’s alternative ruling granting Thiel’s motion for summary
judgment.

                                11
