Jeandron v. Board of Regents of the University System of Maryland , 510 F. App'x 223 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1724
GERALD JEANDRON,
Plaintiff – Appellant,
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND;
UNIVERSITY SYSTEM OF MARYLAND; UNIVERSITY OF MARYLAND;
WALLACE D. LOH, Ph.D., in his official capacity as
President of the University of Maryland, College Park;
SALLY S. SIMPSON, Ph.D., Individually, and in her official
capacity as Department Chair; RAYMOND PATERNOSTER, Ph.D.,
Individually, and in his capacity as Professor of
Criminology and Criminal Justice,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:11-cv-02496-RWT)
Submitted: January 31, 2013 Decided: February 14, 2013
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederick B. Goldberg, FRED B. GOLDBERG, PC, Bethesda, Maryland;
Mark L. Rosenberg, LAW OFFICES OF MARK L. ROSENBERG, Bethesda,
Maryland, for Appellant. Douglas F. Gansler, Attorney General
of Maryland, Sally L. Swann, Assistant Attorney General, Holly
Elizabeth Combe, Staff Attorney, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gerald Jeandron filed an action against the Board of
Regents of the University System of Maryland; the University of
Maryland at College Park (UMCP); University of Maryland
President Loh in his official capacity; Sally Simpson,
Department of Criminology and Criminal Justice Chair, in her
official and individual capacity; and Raymond Paternoster,
Professor of Criminology and Criminal Justice, in his individual
and official capacity. Jeandron raised four counts in his
complaint: count one, violation of the Americans with
Disabilities Act (ADA); count two, violation of the
Rehabilitation Act; count three, breach of contract; and count
four, tortious conspiracy to breach contract.
Jeandron is blind and is disabled under the ADA.
Jeandron was previously accepted into the graduate studies
program of the Department of Criminology and Criminal Justice
Studies (CCJS). In 2007, he filed an action under the ADA and
the Rehabilitation Act alleging discrimination against him by
University of Maryland and other named defendants. The parties
settled the lawsuit by written agreement entered on June 20,
2007. The agreement provided $250,000 to Jeandron for him to
purchase and provide all accommodations to assist him in
completing his program to obtain a Ph.D. The agreement also
specified that Jeandron was still subject to all the rules,
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procedures, and practices of the University of Maryland System,
including, but not limited to, time limitations for completing
his degree and rules pertaining to satisfactory progress toward
his degree.
After executing the settlement agreement, Jeandron
continued to pursue his doctorate at UMCP. Dr. Paternoster
served as Jeandron’s dissertation advisor. In July 2008,
Jeandron attempted to register for Fall 2008 classes but was
unable to due to a “financial hold” on his account. Later, but
prior to September 8, 2008, Jeandron alleges that he could not
register for classes because the University had placed an
“academic hold” on his account. On September 10, 2008, Dr.
Denise Gottfredson, former graduate director of CCJS at UMCP,
emailed Jeandron to confirm that the University had previously
dismissed him from the CCJS graduate program. On September 7,
2011, Jeandron filed the subject lawsuit.
The Defendants filed a motion to dismiss or, in the
alternative, for summary judgment. The Defendants alleged that
Jeandron’s action is barred by the three-year statute of
limitations because various documents were sent to Jeandron in
2007 and early 2008 regarding his failure to progress and his
termination from the program. On December 18, 2007, Dr.
Gottfredson sent Jeandron a letter at his home address advising
him that his progress was unsatisfactory because he had not
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submitted three chapters of his dissertation to his advisor.
The letter also referred to a May 29, 2007 letter that advised
Jeandron that he had not met the department’s standards for
satisfactory and timely progress for a second consecutive
semester and that, if he continued to perform below the
standard, he would be dismissed from the CCJS graduate program.
The letter concluded that “[i]f we do not hear from you on or
before Tuesday, January 8, 2008, this letter stands as notice of
the department’s decision to terminate your enrollment in the
CCJS Ph.D. Program.”
On January 8, 2008, Dr. Gottfredson sent another
letter to Jeandron, by certified mail to his home address. The
letter informed Jeandron that his enrollment in the program was
terminated at the close of the Fall 2007 semester. Lillian
Bradley confirmed receipt of the letter by signing for it on
January 10, 2008. 1 On February 1, 2008, the Assistant Dean sent
a letter to Jeandron at his home address stating that Jeandron
had been terminated as a graduate student of UMCP due to his
“failure to complete the requirements essential to the degree
. . . .”
All the Defendants moved to dismiss the complaint in
its entirety based on the statute of limitations, or in the
1
Jeandron lived in an apartment building with a mailroom.
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alternative for summary judgment as a matter of law. Jeandron
opposed the motion and contended that he did not receive any of
the letters from the University from December 2007 forward. He
claims that he was first on notice that he was terminated from
the program on September 8, 2008, when he received an email
after the academic hold was placed on his account in July 2008.
The district court held a hearing on the motion to
dismiss or, in the alternative, for summary judgment. The court
heard from counsel and considered the motion and response and
the materials, including Jeandron’s affidavit claiming not to
have received notice of termination until September 8, 2008.
The district court concluded that all the claims were barred by
the statute of limitations. The court relied on evidence that a
letter informing Jeandron of his termination was sent by
certified mail and that the return receipt was signed for by a
person identified as Lillian Bradley, and that there was no
requirement to send the letter by restricted delivery (unlike
service of process requirements). 2 The court found letters were
also sent on December 18, 2007, January 8, 2008, and February 1,
2008.
2
The district court mistakenly identified the certified
letter as sent on December 18, 2007. The certified letter was
sent on January 8, 2008. The mistake, however, is
inconsequential.
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The court also considered the University’s published
requirements for obtaining a Ph.D., which were not in the record
before the hearing, but which the court included as part of its
ruling. The University had a continuous enrollment requirement
that graduate students must register for continuing courses in
the Fall and Spring, unless a waiver is given. The court found
that the notices were given “in the ordinary manner” and that
there is no requirement to prove actual receipt. The court went
on to hold that a reasonably alert Ph.D. candidate would be on
notice given the academic hold and the presumed knowledge of the
continuous registration requirements. The court relied on the
multiple notifications to conclude that the entire complaint was
barred by the statute of limitations.
This court reviews de novo the district court’s order
granting a Fed. R. Civ. P. 12(b)(6) motion to dismiss.
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 179-80 (4th
Cir. 2009). This court has stated:
[A] Rule 12(b)(6) motion should only be granted if,
after accepting all well-pleaded allegations in the
plaintiff’s complaint as true and drawing all
reasonable factual inferences from those facts in the
plaintiff’s favor, it appears certain that the
plaintiff cannot plead any set of facts in support of
his claim entitling him to relief.
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999).
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The court reviews de novo a district court’s order
granting summary judgment. Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary
judgment should be granted “if the movant shows that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment”
is proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) (citations omitted).
The ADA and Rehabilitation Act do not provide a
statute of limitations. Accordingly, courts “borrow” the most
appropriate or analogous state statute of limitations and apply
it to the federal cause of action. See A Soc’y Without A Name
v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011), cert. denied,
132 S. Ct. 1960 (2012). Maryland courts apply the three-year
limitations period governing general civil actions to ADA and
Rehabilitation Act claims. Schalk v. Associated Anesthesiology
Practice, 316 F. Supp. 2d 244, 251 (D. Md. 2004); Kohler v.
Shenasky, 914 F. Supp. 1206, 1211 (D. Md. 1995). The remaining
counts of Jeandron’s complaint fall under the Maryland
three-year statute of limitations for general civil actions as
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well. See Md. Cts. & Jud. Proc. Code Ann. § 5-101; Hartnett v.
Schering Corp., 2 F.3d 90, 92 (4th Cir. 1993); Shailendra Kumar,
P.A. v. Dhanda, 43 A.3d 1029, 1033–34 (2012) (applying the
three-year statute of limitations to a breach of contract).
A cause of action for discrimination cases accrues on
the date that the alleged unlawful conduct occurred. Martin v.
Southwestern Virginia Gas Co., 135 F.3d 307, 310 (4th Cir.
1998). The unlawful practice occurs when the plaintiff is
informed of the allegedly discriminatory practice or decision.
Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980). For
the state tort claims, under Maryland’s general discovery rule,
the statute of limitations begins to run when the allegedly
tortious conduct is discovered — that is, when the plaintiff “in
fact knew or reasonably should have known of the wrong.”
Pennwalt Corp. v. Nasios, 550 A.2d 1155, 1160 (Md. 1988)
(quoting Poffenberger v. Risser, 431 A.2d 677, 680 (Md. 1981)
(applying the discovery rule to all tort claims)). Actual
knowledge, either express or implied, is required to find that a
tort was discovered within the meaning of the rule.
Poffenberger, 431 A.2d at 681. Because implied actual knowledge
is sufficient to start the limitations period, courts consider
the three years to begin when a plaintiff is on inquiry notice.
Inquiry notice arises “when a plaintiff gains knowledge
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sufficient to prompt a reasonable person to inquire further.”
Pennwalt, 550 A.2d at 1163.
It is undisputed that, at the very least, Dr.
Gottfredson’s letter of January 8, 2008, was received at
Jeandron’s address. Further, Jeandron should have been on
notice that he was terminated if he had attempted to register
for Spring 2008 courses, which he was required to do under the
settlement agreement and under University policies. He did not
register, even though he was on notice of the University’s
requirement of continuous progress and registration in
furtherance of a graduate student’s degree. Accordingly, the
district court concluded that Jeandron was on inquiry notice
before the Spring 2008 semester and that a reasonable
investigation undertaken at the time would have revealed his
termination from the program.
On appeal, Jeandron assigns error to the district
court’s consideration of the continuous enrollment requirement
that the court found on the University’s web site. The court
included the materials it considered in its order. At the
hearing, the court discussed with both parties the information
it found on the University’s policy, although that policy itself
had not previously been made part of the record by either party.
A court may take judicial notice of information publicly
announced on a party’s web site, so long as the web site’s
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authenticity is not in dispute and “it is capable of accurate
and ready determination.” Fed. R. Evid. 201(b); see O’Toole v.
Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)
(holding that it is not uncommon for courts to take judicial
notice of factual information found on the world wide web”).
Jeandron did not lodge an objection at the hearing to
the court’s consideration of the University policy found on the
University’s web site, except to say whether the University
follows the policy is hearsay. Further, counsel admitted that
Jeandron was aware of the requirement discussed in the materials
and considered by the court. The satisfactory progress
requirement is also specifically noted in the settlement
agreement. There is no disagreement over the accuracy of the
factual information that the district court relied upon.
Granting broad deference to the district court and reviewing for
an abuse of discretion, the district court did not err in
consideration of the materials. See United States v. Myers, 280
F.3d 407, 413 (4th Cir. 2002) (the district court’s admission of
evidence must be reviewed with broad deference); United States
v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (the district
court's decision to admit evidence will be overturned only
“under the most extraordinary of circumstances.”).
Jeandron also raises judicial bias related to the
court’s reliance on the continuous registration requirement.
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Jeandron argues that the court’s consideration and reliance on
the requirement led it to accuse Jeandron of being unreasonable
and the court inappropriately blamed him for not receiving the
termination letters. Jeandron contends that the court
predetermined the outcome of the case and denied him a fair
hearing. This claim is patently without merit. “[J]udicial
rulings alone almost never constitute a valid basis for a bias
or partiality motion.” Liteky v. United States, 510 U.S. 540,
555 (1994). Moreover, even in the context of a jury trial,
judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do
not support a bias or partiality charge. They may do
so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible.
Id.. The continuous registration requirement was properly
admitted, as discussed above, and even if it were considered an
extra-judicial source, Jeandron has not established that the
court’s conduct during the course of the hearing was so highly
antagonistic “as to make fair judgment impossible.” Liteky, 510
U.S. at 556.
Lastly, Jeandron argues that the court erred in ruling
under either Rule 12(b)(6) or Rule 56 that he had receipt of the
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letters sent by the Defendants. 3 Jeandron argues that had the
court accepted as true his claims under Rule 12(b)(6), the court
should have found that his claim was timely filed. Under Rule
56, Jeandron claims that there is a factual dispute as to his
receipt of the 2007 and 2008 letters, and therefore summary
judgment is improper. A self-serving affidavit, without more,
is not sufficient to defeat summary judgment. See Nat’l
Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000).
We conclude, however, that the court’s decision may be affirmed
on the basis of reasonable inquiry alone, and therefore, even
had there been a factual dispute as to actual receipt of the
letters of termination from the graduate program, it did not
affect the statute of limitations issue.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
3
It is unclear whether the court dismissed under Rule
12(b)(6) or granted summary judgment under Rule 56. The court
stated that it was granting the Defendants’ motion to dismiss
and/or for summary judgment.
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