DocketNumber： Civil No. 08-2378 (BJM)
Citation Numbers： 786 F. Supp. 2d 489, 2011 WL 1938239
Judges： McGiverin
Filed Date： 4/29/2011
Status： Precedential
Modified Date： 10/19/2024
OPINION AND ORDER
Before the court is the latest phase in the litigation arising out of plaintiff Jayrie Rivera-Concepeión’s (“Jayrie”) expulsion from the Córdova and Fernós Congressional Internship Program (“Program”) in January 2007 after apparently undergoing a manic episode of bipolar disorder. (See Docket No. 10-3). Defendants the Commonwealth of Puerto Rico, the Puerto Rico Senate (“Senate”), and the Puerto Rico House of Representatives (“House”) (collectively, “defendants” or “moving defendants”)
STANDARD OF REVIEW
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.” Fed.R.Civ.P. 56(a). A fact is material only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining if a material fact is “genuine,” the court does not weigh the facts but instead ascertains whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).
“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact.” Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed.R.Civ.P. 56(c)(1)(A). Once this threshold is met, the burden shifts to the nonmoving party, who “must do more than simply
FACTUAL AND PROCEDURAL BACKGROUND
The following material facts, which will be viewed in the light most favorable to plaintiffs as the nonmoving party, are either undisputed or conclusively supported by the evidentiary record except where otherwise noted.
The Program was created by law to provide internship opportunities to undergraduate students who have completed at least half of the necessary requirements for a bachelor’s degree and graduate students enrolled in post-secondary institutions in Puerto Rico. Program participants would receive a salary and stipend for lodging and transportation during a maximum of four months working full-time at the office of the congressperson, Puerto Rico or federal administrative agency, or independent agency or institution at which they were placed. The Program is implemented and operated through a Joint Commission of the Puerto Rico Legislative Assembly. The members of this Joint Commission are the Presidents of the Senate and the House of Representatives, the speakers of all political parties in both legislative bodies, and the Presidents of the Legislative Commissions in charge of international and federal affairs in both legislative bodies. (Docket No. 87, ¶¶ 1-3 (citing 2 L.P.R.A. §§ 802, 804)).
At all relevant times, the Program was administered under the aegis of the Office of Legislative Services of the Legislative Assembly of Puerto Rico (“OSL”). The operating funds of the OSL and the programs it administered were accounted for and managed separately from the funds of either of the chambers of the Legislative Assembly or the other legislative agencies. The source of all OSL and Program funds was the Commonwealth’s General Fund. The OSL neither requested nor received federal funds or grants for the Program, nor did it otherwise request or receive any other federal funds or grants. (Docket No. 87, ¶¶ 4-6).
The Washington Center (“TWC” or “Center”) is a private, non-profit organization established in 1975 with headquarters in Washington, D.C. Its mandate is to organize internship placements, academic programs and seminars, and other prac
Plaintiff Jayrie Rivera-Concepción applied to the Program on October 20, 2006. On the Program application form, she left blank the sections titled “Please indicate any special needs or requirements” and “Please inform us of any special conditions TWC should be aware of in order for you to fully participate in our program. Use a separate sheet if necessary.” (Id., ¶¶ 11-13). In December 2006, Jayrie received a letter signed by nonmoving defendant Francisco Rodríguez-Carambot (“Rodriguez”), who is in default, indicating she was accepted to the Program. (Id., ¶ 14; see also Docket Nos. 30, 31). On January 16, 2007, Jayrie attended a workshop for the Program held at the law firm of McConnell Valdés in Hato Rey, which was also attended by defendant Rodriguez of the Program and César Hernández, Program Coordinator for the internships at TWC. At the workshop, Jayrie was made aware that attendance at Program activities was mandatory. (Docket No. 87, ¶¶ 15-17).
On the morning of January 18, 2007,’ Concepción and Viera brought Jayrie to the airport for her flight to Washington, D.C. Hernández and Rodriguez accompanied the Program interns on the first leg of the journey, from San Juan to Miami. At the international airport in San Juan, Rodriguez handed Jayrie a check for $300 to cover the plane ticket and first per diem payment. (Id., ¶¶ 18-20). When the flight arrived in Miami, Rodriguez informed Jayrie he was no longer the Director of the Program and was leaving the Program altogether, and that he was moving to Florida with his girlfriend. (Id., ¶¶ 21-22). Rodriguez resigned from his employment in the OSL effective January
Upon her arrival in Washington, D.C., Jayrie was assigned to share an apartment •with three other interns, one of whom was from the Program. (Id., ¶29). Jayrie attended an orientation held by TWC for all participating interns, including the students from the Program, on the morning of January 19, 2007. She failed to attend an orientation held specifically for Program students on the afternoon of the same day. (Id., ¶¶ 30-31).
On or about January 21, 2007, Jayrie met with TWC’s Managing Director, Peter Stephens, because she was concerned she did not have an internship placement yet. At the time, most of the Program participants did not yet have an internship placement. Stephens suggested Jayrie visit Congresswoman Nancy Pelosi’s office to introduce herself and present her résumé. (Docket No. 87, ¶¶ 32-34). When she visited Rep. Pelosi’s office the same day, Jayrie indicated to Rep. Pelosi’s assistant that she had an internship confirmed in her office. (Id., ¶ 35). After being informed that no one could meet with her at the time, Jayrie refused to leave. (Docket No. 91-5, p. 1). Rep. Pelosi’s assistant called Stephens twice to express her concern about Jayrie’s behavior. (Docket No. 87, ¶ 36). Jayrie did not call or speak with Stephens after visiting the congresswoman’s office despite having been instructed to do so. (Id., ¶ 37).
On January 22, 2007, Jayrie failed to attend either a Pentagon tour, a mandatory Program activity, or her first day of class at Johns Hopkins University, also a Program activity. (Id., ¶¶ 38-39). That day, Jayrie visited the emergency room (“ER”) at George Washington Hospital because she was suffering from a migraine and asthma. She excused herself with Program personnel because she missed what would have been her first day of school. On the train on the way back to her apartment, a couple unknown to her noticed she looked ill, called her roommate, and waited with Jayrie at the train station until her roommate was able to get her. (Docket No. 91, ¶ 4).
Jayrie’s behavior between January 18 and 23, 2007 raised concern among her roommates, staff at TWC, and staff at the residential building where she lived. (Docket No. 91, ¶ 1). TWC learned of Jayrie’s behavior from TWC resident assistants (“RAs”) in Jayrie’s building and from a building manager. (Docket No. 91-2, p. 1, 19). The behavior observed included crying, displaying disruptive and angry behavior toward the other students, and difficulty interacting with her peers. She also handed out business cards to strangers in her building, which, according to TWC employee Jennifer Clinton, TWC considered a safety risk to herself and other students. Clinton testified that the RAs did not mention any concerns about Jayrie’s mental status, solely about her ability to get along with her roommates, which Clinton testified was not an unusual problem for students early in the semester. (Docket Nos. 91, ¶ 2; 91-2, p. 1-2, 16-17, 23-24). Clinton testified that previous TWC students had shown the type of
On January 23, 2007, Jayrie received from TWC representative Sonia Zaide an e-mail which was copied to TWC employees and/or representatives Stephens, Hernández, Virginia Gergoff, Arleen Borysiewiez, and Ivette Morales. The e-mail, titled “Warning E-Mail,” informed Jayrie she had failed to attend the mandatory Pentagon tour or the mandatory Program orientation on the afternoon of January 19 and had failed to report to Managing Director Stephens on the day of her visit to Pelosi’s office, despite his instructions to do so. The e-mail also noted Jayrie’s conduct and false statement about having an internship when visiting Rep. Pelosi’s office. (Docket Nos. 87, ¶¶ 40-44; 91-5, p. 1). The e-mail, which was copied to several TWC employees and/or representatives, requested to meet with Jayrie the next day at 9:30 a.m. in order to “discuss our expectations from you.” Jayrie was warned that “failure to do so will indicate that you no longer wish to be in the program and we will administer student discharge procedures as noted in the student handbook.” (Docket No. 91, ¶ 5). The student handbook to which the e-mail referred was handed to Jayrie during the first orientation, along with other documents. (Docket No. 87, ¶ 45).
On January 23, 2007, after the “Warning E-Mail” had been sent and before TWC made the decision to expel Jayrie, staff from TWC spoke with Rodriguez regarding Jayrie’s behavior. (Docket Nos. 91, ¶ 6; 91-2, p. 13-14). Although he was not in Washington and had not seen or had any contact with Jayrie after he left the Program group in Miami, Rodriguez agreed that Jayrie should not participate in the Program; he did not object to TWC’s suggestion that Jayrie was not ready for it. (Id., ¶ 8; Docket No. 91-2, p, 6, 13-15). TWC’s protocol is to consult with their partners to obtain input or information before TWC terminates a student. In Jayrie’s case, that partner was the Program. (Docket No. 91, ¶ 7).
Clinton testified that she authorized the decision to expel Jayrie from the Program subsequent to her phone call with Rodriguez. (Docket No. 91-2, p. 11, 13-14). At around 5:00 p.m. on the afternoon of January 23, 2007, Rodriguez called Concepción and told her Jayrie had been expelled from the Program due to “erratic behavior” and that Jayrie needed to return to Puerto Rico immediately. (Docket No. 91, ¶ 9). Concepción was aware that Rodriguez was in Florida at the time. (Docket No. 87, ¶¶ 46-47). The same day, Jayrie received a phone call from Rodriguez on her cell phone informing her that she was expelled from the Program and needed to pack her belongings and return to Puerto Rico as soon as possible. (Docket Nos. 87, ¶ 48; 91, ¶ 10).
After her conversation with Rodriguez that afternoon, Jayrie went walking outside her apartment complex in cold weather wearing only shorts and a T-shirt. (Docket No. 87, ¶ 49). She ended up in a Lexus dealership, where she attempted to buy a car for $30. A dealership employee bought her jeans and a coat and contacted the police, who took her to the ER of the Inova Mount Vernon Hospital in Alexandria, Virginia.' She was admitted to the ER on the evening of Tuesday, January 23, 2007, and from there committed to the Northern Virginia Mental Health Institute (“NVMHI”), where, she was diagnosed with bipolar disorder type 1, manic episode with psychotic features. (Id., ¶¶ 50-52; Docket Nos. 91, ¶¶ 11-12; 91-6, p. 1).
Although Jayrie and Concepción communicated constantly while Jayrie was in Washington, Concepción did not notice
Jayrie testified that she began hearing voices for the first time after being admitted to the Inova Mount Vernon ER. (Docket Nos. 87, ¶ 54; 87-4, p. 35). According to her discharge paperwork from NVMHI, Jayrie told the psychiatrist at Inova Mount Vernon that she had been “hearing voices,” “dreaming about Jesus Christ,” and feeling she had a “special gift” during this time. (Docket Nos. 91, ¶ 3; 91-6, p. 2). Previously, Jayrie had been treated at age 15 for an episode of post-traumatic stress disorder (“PTSD”). She received treatment for a year, including psychological treatment and medication with antidepressants. After this episode of PTSD, Jayrie functioned normally until the manic episode that began upon her arrival in Washington, D.C. (Docket No. 91, ¶¶ 13-14).
On January 23, 2007, Jayrie’s aunt spoke with Isabel Santa, the Resident Assistant at Jayrie’s apartment building, and asked Santa to give her phone number to a person in charge of the Program who could give her information about Jayrie. Three or four days later, while Jayrie was in the hospital, Rodriguez called Jayrie’s aunt and assured her Jayrie would be readmitted to the Program after she got better. (Docket No. 91, ¶¶ 15-16). When Stephens spoke with Jayrie’s mother, Concepcion, by phone the day after Jayrie’s hospitalization, Stephens told her that Jayrie had been expelled from the Program due to her health condition. Stephens made no such comments during an in-person meeting he and TWC staffer Virginia Gergoff held at TWC with Concepción (and, via teleconference, Domenech) while Jayrie was still hospitalized in February 2007. (Docket Nos. 87, ¶ 57; 87-7, p. 11-12; 91, ¶ 17; 91-1, p. 10-17).
Jayrie never personally requested either reconsideration by TWC regarding her expulsion or readmission to the Program, as she was hospitalized at NVMHI. She was never able to speak to someone from the Legislative Assembly about her expulsion. (Docket Nos. 87, ¶¶ 58-59; 87-4, p. 36-37). During the in-person meeting at TWC while Jayrie was hospitalized, Concepción requested information about TWC’s disciplinary committee and its expulsion policies. She provided a handwritten authorization from Jayrie for Concepción to request information about her. Stephens and Gergoff declined to provide the requested information. (Docket No. 91-1, p. 13-17). '
According to a sworn statement by Domenech, he received a call at one point from a TWC representative to inform him that Jayrie’s behavior was inconsistent with the standards TWC expected from the participants of its internship programs, but that she was going to be given an opportunity to correct her conduct and continue in the Program. (Id., ¶ 64). The decision to expel Jayrie from the Program was made by TWC and was communicated to Domenech after the decision had been put into effect. At the time, Domenech was informed that TWC had made the
Plaintiffs’ case was removed from the Commonwealth courts to this court on December 10, 2008. The original state-court complaint included TWC as a defendant, but TWC was dropped from the amended complaint. (Id, ¶¶ 69-70; Docket No. 10-3).
DISCUSSION
Defendants Commonwealth, House, and Senate move for summary judgment on plaintiffs’ claims under Title II of the ADA, the Rehabilitation Act, and Puerto Rico law. (Docket No. 88). The court discusses each in turn.
I. Title II of the ADA
Congress enacted Title II of the ADA to prohibit “discrimination by governmental entities in the operation of public services, programs, and activities.” Toledo v. Sánchez, 454 F.3d 24, 30 (1st Cir.2006); 42 U.S.C. § 12132. Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden. Toledo, 454 F.3d at 32 (citations omitted). To survive summary judgment, a plaintiff alleging discrimination under Title II must raise evidence, sufficient to raise a genuine issue of material fact, from which a reasonable factfinder could conclude: (1) that she is a qualified individual with a disability; (2) that she was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits or discrimination was by reason of her disability. Id. at 31-32 (citations omitted); Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21-22 (1st Cir.2006) (citation omitted).
The moving defendants do not dispute that Jayrie meets the first prong, but argue that plaintiffs cannot meet the second or third requirements. (Docket No. 88, p. 7-15). Under the second prong, while Jayrie’s expulsion certainly excluded her from participation in the Program, defendants argue that this action was taken by TWC, not by defendants. (Id, p. 8-12). The court agrees: the undisputed facts show that it was TWC that made the decision to expel Jayrie from the Program; Clinton testified that she authorized that decision. While TWC staff called Rodriguez before finalizing the decision, it is undisputed that Rodriguez had resigned from his job with the Program on January 18, 2007, and that Rodriguez was not authorized after his resignation to act on behalf of the OSL or the Program. And the undisputed facts show that Domenech, who became Program Director upon Rodriguez’s resignation, did not learn of the expulsion until it had already been put into effect.
Plaintiffs insist that Rodriguez was acting as a representative of the Program when he spoke with TWC, then with Jayrie and her mother. (Docket No. 92, p. 10). However, plaintiffs have not shown that Rodriguez was acting as the Program’s legal agent at the time, since it is undisputed that he was not authorized to do so. Moreover, his agency status is
Under the third prong, the moving defendants argue that even if they did have a role in Jayrie’s expulsion, plaintiffs cannot show that the expulsion was “by reason of’ her health condition because defendants had no knowledge of Jayrie’s mental health condition prior to her expulsion. (Id., p. 12-15). Plaintiffs respond that “there is clear, undisputed evidence” that Rodriguez was informed and consulted by TWC staff about Jayrie’s “situation” prior to January 23, 2007. (Docket No. 92, p. 10). Regardless of Rodriguez’s agency status at the time, this contention is not supported by the record. There is no evidence that TWC staff passed on the comments from Jayrie’s RAs and building manager to Rodriguez or any of the moving defendants prior to TWC’s January 23 phone call with Rodriguez.
It is undisputed that Jayrie left blank the sections of the Program application for communicating any special needs or conditions she had. The undisputed facts also show that Domenech, the Program’s Director, was never informed that TWC’s expulsion decision was due to any mental condition, and that when notified of that decision, Domenech was unaware that Jayrie suffered from any mental condition. Moreover, there is no evidence that anyone at TWC or the Program observed Jayrie’s behavior (no Program representatives were with Jayrie in Washington) or that they were told about it by her roommates. And there is no indication that Rodriguez informed the moving defendants about Jayrie’s “erratic behavior” between TWC’s phone call to him on January 23, 2007 and TWC’s expulsion of Jayrie that same day. Accordingly, plaintiffs have not shown that the moving defendants discriminated against Jayrie “by reason of’ her mental condition, even assuming they had any role in her expulsion.
Citing Miller v. Nat’l Cas. Co., 61 F.3d 627, 630 (8th Cir.1995), plaintiffs argue that Jayrie’s “erratic behavior” was a symptom of her mental disability, so knowledge of her disability at the time of the expulsion may be imputed to defendants. (Docket No. 92, p. 6-7, 10-12). This citation does not help plaintiffs. In Miller, the court affirmed summary judgment for the defendant where the plaintiff had not disclosed her mental impairment, finding that “since [defendant] did not know of [plaintiffs] disability until after her employment was terminated, it would have been impossible for the company to
Furthermore, the Miller court found that to the extent the defendant knew of the plaintiffs symptoms before terminating her, those symptoms “were not so obviously manifestations of an underlying disability that it would be reasonable to infer that [her] employer actually knew of the disability.” Id. The same is true of Jayrie’s behavior. As defendants note (Docket No. 106, p. 4), the evidence does not show that TWC considered Jayrie’s behavior before her expulsion to be indicative of a mental condition. Prior to January 23, Jayrie’s RAs never expressed concerns to TWC about Jayrie’s mental status. And TWC staff did not consider it unusual for a student to display the sort of behavior that the RAs did report, due to homesickness or problems getting along with new roommates. TWC’s ‘Warning EMail” made no mention of Jayrie’s crying or angry or disruptive behavior; rather, it admonished her for missing the mandatory afternoon orientation session and the Pentagon tour and for falsely telling staff at Rep. Pelosi’s office that she had a confirmed internship there. While such conduct could arguably be symptoms of a manic episode, it is not so obviously a manifestation of bipolar disorder as to render it reasonable to impute actual knowledge of the disorder even to TWC or Rodriguez, much less to the moving defendants.
Finally, plaintiffs argue that even after her expulsion, defendants discriminated against Jayrie because they “threw obstacles in [plaintiffs’] way which made it impossible for them to find out what had happened.” (Docket No. 92, p. 12).
In sum, plaintiffs have failed to show that the moving defendants expelled Jayrie from the Program as required to meet the second prong of the prima facie Title II case, or that her expulsion was “by reason of’ her mental health condition under the third prong. I therefore grant summary judgment to the moving defendants on plaintiffs’ ADA claim.
II. Rehabilitation Act
Section 504 of the Rehabilitation Act proscribes discrimination against disabled individuals in any program or ae
The moving defendants argue that even if the Program is a “federally funded program or activity” under Section 504, which they deny, plaintiffs have not established the third and fourth prongs of the Lesley test because Jayrie failed to comply with the Program’s requirements (prong three) and that neither defendants nor TWC knew about Jayrie’s condition prior to her expulsion (prong four). (Docket No. 88, p. 16-17). Plaintiffs respond that Jayrie was exhibiting symptoms of mental illness before her expulsion and that her behavior that contravened Program requirements was likewise a symptom of her alleged disability. (Docket No. 92, p. 10-12).
Plaintiffs’ claim of discrimination is analyzed under the same standards as those used to determine whether Title II has been violated. See Tardie v. Rehabilita,tion Hosp. of R.I., 168 F.3d 538, 542 (1st Cir.1999). For the reasons discussed supra with regard to Title II, plaintiffs’ Section 504 claim also fails. It is undisputed that Jayrie failed to attend several mandatory activities prior to her expulsion, made a misrepresentation to Rep. Pelosi’s assistant, and then refused to leave the congresswoman’s office. Since she missed several mandatory activities, plaintiffs cannot show that Jayrie otherwise met the Program’s qualifications after her arrival in Washington. Furthermore, the “Warning E-Mail” and Clinton’s testimony show that Jayrie’s absenteeism and behavior at Rep. Pelosi’s office were grounds for her warning and subsequent termination, so plaintiffs cannot show that she was expelled solely by reason of her disability. Moreover, as discussed supra, neither TWC, Rodriguez, nor the moving defendants knew of Jayrie’s mental condition prior to her expulsion, and her conduct is not so obviously a manifestation of bipolar disorder to impute actual knowledge to TWC or any of the defendants. Because plaintiffs cannot meet the third or fourth prongs of the prima facie case for discrimination under Section 504, the court grants summary judgment to the moving defendants on plaintiffs’ Rehabilitation Act claim.
III. Plaintiffs’ Claims Under Puerto Rico Law
Next, defendants argue that plaintiffs’ claims for disability discrimination under Law 44, 1 L.P.R.A. §§ 501-511(b), and the Puerto Rico constitution, P.R. Const, art. II, § 1, should be dismissed. (Docket No. 88, p. 17-22). In cases where the plaintiffs’ federal claims are dismissed, “the balance of factors to be
IV. Failure to Join Indispensable Party
Finally, defendants argue that under Federal Rule of Civil Procedure 19(a), plaintiffs’ failure to join TWC as a party in the present action is an independently sufficient ground for dismissal of the case. (Docket No. 88, p. 22-24). Plaintiffs respond that under First Circuit law, a joint tortfeasor such as TWC is not an indispensable party. (Docket No. 92, p. 9) (citing Castro-Cruz v. Municipality of San Juan, 643 F.Supp.2d 194, 198 (D.P.R.2009)). The court agrees with plaintiffs that under Rule 19, “a person potentially liable as a joint tortfeasor is not a necessary or indispensable party, but merely a permissive party subject to joinder under Rule 20.” Pujol v. Shearson Am. Exp., Inc., 877 F.2d 132, 137 (1st Cir.1989) (citation omitted) (considering whether non joined party’s “initial wrongdoing” and defendant’s subsequent act “together may have caused” co-plaintiffs injuries). The court will not dismiss the action based on Rule 19(a), particularly since such a basis for dismissal is unnecessary in light of my holdings above.
CONCLUSION
For the reasons stated above, the court GRANTS defendants Commonwealth, House, and Senate’s motion for summary judgment (Docket No. 88) on all claims. Furthermore, since moving defendants House and Senate are sued through defendants McClintock and Aponte (Docket No. 10-3, ¶ 4), the court likewise DISMISSES all claims against defendants McClintock and Aponte. Partial judgment to be entered accordingly.
IT IS SO ORDERED.
. While other defendants are parties to the case besides the House, Senate, and Commonwealth, I will use the term "defendants” for convenience to refer to the moving defendants.
. In determining what facts are supported by the evidentiary record, I have applied Local Rule 56(e):
Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duly to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.
The court notes that plaintiffs did not include a cover sheet or other identifying information for the deposition transcripts included as exhibits with plaintiffs’ opposing statement of material facts (Docket Nos. 91-1, 91-2, 91-3, 91-4), but the court will consider the depositions since they were not challenged by defendants. (Docket No. 107). The court further notes that the paragraphs in plaintiffs' opposing statement of material facts are misnumbered; the court uses the correct numbering. (See Docket No. 91).
. Both the defendants' statement of uncontested facts and the sworn statement on which this particular statement of fact is based say "February.” Defendants have since filed errata informing the court that the sworn statement should have read "January.” (Docket Nos. 87, ¶ 23; 87-1, ¶ 6; 114). Plaintiffs were given until April 28, 2011 to respond (Docket No. 111), but did not do so.
. For this reason, the fact that Stephens, a TWC employee, told Concepción by phone while Jayrie was hospitalized that Jayrie was expelled for her mental condition does not create a material fact issue as to whether the moving defendants discriminated against Jayrie.
. The court has previously ruled that plaintiffs cannot proceed on a “failure to accommodate” theory under the ADA. (Docket No. 72). To the extent that plaintiffs are attempting to use evidence of TWC’s denial of information for such a claim at this stage, the court will not entertain it.
. Defendants devote a great deal of space in their third-prong argument to a theory of independent contractor negligence, assuming TWC is viewed as an independent contractor for the defendants. (Docket No. 88, p. 10-12). Plaintiffs respond that this theory "is of no application in this case” since it is unsupported by the evidence. (Docket No. 92, p. 12-13). The court agrees. Plaintiffs then go on to argue that even if TWC were an independent contractor, it was Rodriguez, as the Program's representative, who “set in motion the discriminatory treatment of Jayrie with regard to her expulsion and subsequent lack of access” to the Program. (Id.). The court has already rejected these contentions.
. I therefore need not resolve defendants’ alternative argument that summary judgment is appropriate because the Program is not a "federally funded program or activity” under Section 504. (Docket No. 88, p. 15-16).