Stacia Hartleben v. University Of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STACIA HARTLEBEN, an individual, No. 73758-9-1
Appellant, DIVISION ONE
v.
PUBLISHED OPINION
UNIVERSITY OF WASHINGTON,
Respondent. FILED: July 5, 2016
Leach, J. — Stacia Hartleben appeals the trial court's summary judgment
order dismissing her case against the University of Washington (University). She
claims that the University violated the Washington Law Against Discrimination
(WLAD)1 when it refused to provide her with free classes as a reasonable
accommodation for her disability. Because Hartleben fails to show that the
University was required to waive her tuition in order to provide her comparable
treatment under the WLAD, the University did not discriminate as a matter of law.
We affirm.
FACTS
Hartleben attended Computational Linguistics master's program
(Program) classes on a part-time basis at the University from 2008 through
Ch. 49.60 RCW.
No. 73758-9-1 / 2
November 2011. She completed five courses in the Program. During some of
the time she was enrolled, she experienced severe depression. This forced her
to take hardship withdrawals or withdraw from her classes to undergo treatment.
From October to December 2011, Hartleben received electroconvulsive
therapy (ECT) to treat her depression. As a side effect, she experienced
retrograde amnesia or memory loss. Now she has almost no memory of the
years between 2007 and the ECT. She only experiences memories in "little
flashes" or pictures without context. Hartleben cannot remember the content of
the Program courses she took.
In February 2013, Hartleben asked Dr. Emily Bender, a professor in the
Program, if she could retake the courses she could not remember without paying
tuition. Dr. Bender referred her to Disability Resources for Students (DRS) and
the student health clinic. Joyce Parvi, a Program employee, suggested that she
petition the Graduate School.
In March 2013, Hartleben met with Terri Dolbrich, a DRS counseling
services coordinator. Hartleben asked to retake classes she had already
completed without receiving credit or a grade but also without having to pay
tuition. Hartleben told Dolbrich that she believed the classes would provide her
interaction and feedback, which she needed due to her disability. She believed
she would have a severe disadvantage if she did not retake the classes.
No. 73758-9-1 / 3
Although she did not then believe that law considered memory loss a disability,
she considered it a disability. Dobrich indicated that she also did not believe that
memory loss is a legal disability. She told Hartleben that "'if the university gave
you free classes, they would have to do itfor everyone.'" Dobrich then told her to
petition the Graduate School.
Rebecca Aanerud, the associate dean of the Graduate School, responded
to Hartleben that DRS must approve an accommodation before the Graduate
School would implement it. Aanerud advised Bree Callahan, the director of DRS,
that the school would not grant Hartleben's request without DRS approval but
would if DRS decided Hartleben had requested a reasonable accommodation.
Callahan responded that she was not sure what could be done retroactively to
accommodate Hartleben but that they would consider accommodations if
Hartleben moved forward in the Program. Dobrich and Callahan discussed that
they did not think Hartleben had requested a reasonable accommodation
because "there was no restriction on her enrolling to retake courses."
Later in March 2013, Callahan and Dobrich consulted with colleagues at
the Registrar's Office and Student Fiscal Services, who said that "all students
must pay tuition," "there was no circumstance under which they would not pay
tuition," and they were not aware of a student taking a class but not paying for it.
DRS had never received a request from a student with retrograde amnesia or a
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request asking to retake classes without paying tuition as a disability
accommodation.
Dobrich met with Hartleben in March in a standard "access planning"
meeting and denied Hartleben's request. Dobrich formally rejected Hartleben's
request for a disability accommodation by e-mail in May. Dobrich advised
Hartleben that she could retake the classes or audit them but would have to pay
tuition. Dobrich also told her that it would consider letting her attend on a part-
time basis to give her more time to finish her degree. Dobrich referred Hartleben
to the Division of Vocational Rehabilitation (DVR).
DVR evaluated Hartleben and concluded that she should work before she
returned to classes and would not authorize payment for school, though a third
party vendor recommended she return to school.
Hartleben filed a complaint with the University Complaint Investigation and
Resolution Office (UCIRO) based on DRS's denial of her accommodation
request. She sought a reasonable accommodation for her retrograde amnesia.
The UCIRO investigator, Kate Leonard, conducted an investigation. She
interviewed five people, including Dolbrich. She concluded that DRS's denial of
Hartleben's request was not a failure to accommodate and that Dobrich did not
treat Hartleben unfairly.
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No. 73758-9-1 / 5
Leonard met with Hartleben in August and told her that the University
would affirm the denial of Hartleben's request. As Hartleben left the meeting,
Leonard told her she could listen to the recordings of the classes she had asked
to retake and that Dr. Bender had suggested this solution. Hartleben told her she
could not learn from recordings because of her focus and cognitive issues due to
memory loss. She later e-mailed Dr. Bender to thank her and explain that self-
study, including with recordings, was not feasible because Hartleben needed
interaction in order to learn.
Hartleben then filed this lawsuit against the University, claiming that the
University had violated the WLAD by failing to provide her with a reasonable
accommodation. During her deposition, Hartleben characterized her "disability
as memory loss, depression, anxiety and the cognitive—neurocognitive
impairments left over from the ECT, including extreme focus and concentration
issues when I'm not participating in a group setting." When asked if she had ever
discussed her cognitive impairments with anyone at the University, she
referenced her meeting with Leonard when Hartleben explained that the
recordings would not be effective because of her "focus issues." The University
moved for summary judgment. The trial court granted the University's motion.
Hartleben appeals.
No. 73758-9-1/6
STANDARD OF REVIEW
This court reviews de novo an appeal from a summary judgment order.2
We affirm summary judgment where, viewing the evidence in the light most
favorable to the nonmoving party, no genuine issue of material fact exists.3
ANALYSIS
Hartleben asserts that the University violated the WLAD when it refused to
allow her to retake classes without paying tuition as an accommodation for her
retrograde amnesia. The University responds that it fulfilled its obligations under
WLAD by offering Hartleben the same services that it offers people who do not
have a disability. It argues that as a matter of law the WLAD does not require it
to offer Hartleben a tuition waiver as a reasonable accommodation.
The WLAD protects the right of a person with a disability to be free of
discrimination in places of public accommodation, including at public
universities.4
It shall be an unfair practice for any person ... to commit an act
which directly or indirectly results in any distinction, restriction, or
discrimination, or the requiring of any person to pay a larger sum
than the uniform rates charged other persons or the refusing or
withholding from any person the admission ... in any place of
2 Fell v. Spokane Transit Auth.. 128 Wash. 2d 618, 625, 911 P.2d 1319
(1996).
3 Riehl v. Foodmaker. Inc., 152 Wash. 2d 138, 144, 94 P.3d 930 (2004).
4 RCW 49.60.030(1 )(b), .040(2).
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No. 73758-9-1 / 7
public . . . accommodation .. . except for conditions and limitations
established by law and applicable to all persons.[5]
The WLAD broadly defines "disability" to mean the presence of a
"mental. . . impairment," including "cognitive limitation."6
Summary judgment is often inappropriate in discrimination cases because
WLAD mandates that courts liberally construe it and because evidence often
contains competing inferences of discrimination and nondiscrimination.7 But
"[cjourts will. . . grant summary judgment when the plaintiff fails to raise a
genuine issue offact on one or more prima facie elements."8
To show a prima facie case of discrimination by the University, Hartleben
needed to present evidence that (1) she has a disability, (2) the University is a
place of public accommodation, (3) the University discriminated against her by
failing to provide her with the "level of designated services provided to individuals
without disabilities," and (4) Hartleben's disability was a substantial factor
causing the discrimination.9 The parties agree that Hartleben's retrograde
amnesia is a disability and that the University is a place of public accommodation
subject to the WLAD.
5 RCW 49.60.215(1).
6RCW49.60.040(7)(a), (c)(ii).
7 Frisino v. Seattle Sch. Dist. No. 1, 160 Wash. App. 765, 777, 249 P.3d
1044 (2011) (quoting Davis v. W. One Auto. Grp., 140 Wash. App. 449, 456, 166
P.3d 807 (2007)).
8 Frisino, 160 Wash. App. at 777.
9 See Fell, 128 Wash. 2d at 637.
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No. 73758-9-1 / 8
We review the record to see if Hartleben raised an issue of fact about the
disputed elements of a prima facie case. A place of public accommodation
discriminates when it fails to provide a person with a disability treatment
comparable to that which it gives a person without that disability.10 The
comparable treatment test ensures that a person with a disability receives equal
opportunity while also ensuring that places of public accommodation do not have
to provide unlimited levels of service.11 "A place of public accommodation is not
required to provide extra services to persons with disabilities, but it may not deny
full access to services already provided."12 The WLAD requires that a place of
public accommodation provide a reasonable accommodation to a person with a
disability when providing the same service or treatment it provides to persons
without disabilities would not give the disabled person full enjoyment of that
place.13
Hartleben argues that she presented sufficient evidence to create an issue
of fact about whether the University treated her comparably to students without a
disability and that her accommodation request was reasonable. But Hartleben
10 Fell, 128 Wash. 2d at 634-36.
11 Fell, 128Wn.2dat631.
12 Wash. State Commc'n Access Project v. Regal Cinemas. Inc., 173 Wn.
App. 174, 189, 293 P.3d 413 (2013).
13 WAC 162-26-060(1), (2), -080(1).
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No. 73758-9-1 / 9
did not present any evidence that the University failed to offer her a comparable
service.
Here, the evidence shows that the University's services include classes
offered in exchange for tuition. All students must pay tuition.14 The evidence
shows that the University offered Hartleben access to the classes she requested,
plus several other accommodations. We conclude that these accommodations
provided Hartleben a comparable service and that her request to take classes
without paying tuition was not reasonable. Because Hartleben failed to show a
prima facie case of discrimination, the trial court properly granted summary
judgment.
Hartleben argues that this case is like Nearon v. Snoaualmie Valley
Hospital.15 There, this court reversed the trial court's grant of summary
judgment. The defendant hospital did not call an emergency number for
interpretation services after it unsuccessfully tried to get an interpreter for a deaf
patient being treated for a life-threatening condition.16 The hospital did provide
the patient with some access to interpreters throughout her treatment.17 This
14 Hartleben mentions in her complaint to the UCIRO that one student she
spoke with sat in on classes "unofficially" without paying tuition. But without
more, this does not show that the University offers this to students. And she fails
to show how this passive approach to learning relates to her accommodation
request for interactive learning in the classroom.
15 86 Wash. App. 579, 936 P.2d 55 (1997).
16 Neqron, 86 Wash. App. at 582-83.
17 Neqron, 86 Wash. App. at 583.
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No. 73758-9-1/10
court determined that because hospital treatment generally includes both medical
intervention and the opportunity to communicate about treatment, the hospital
should provide a deaf person a reasonable opportunity to similarly
communicate.18 Because the hospital failed to provide this communication, an
issue of fact existed as to whether the hospital provided the patient with services
comparable to those it provided patients without a disability.19 But, here,
Hartleben cannot establish that the University provides people without disabilities
access to classes without requiring them to pay tuition.
Indeed, as the University argues, by requesting a tuition waiver, Hartleben
asks the University to provide her with extra services that it does not offer to
other students. In Fell v. Spokane Transit Authority,20 the Washington Supreme
Court reversed summary judgment for the plaintiffs because the trial court did not
evaluate if the transit authority offered comparable services to both people with a
disability and those without. Plaintiffs argued that the transit authority
discriminated against them because its new plan reduced services to transport
elderly people and people with disabilities to fixed public transportation routes.21
But evidence showed that the transit authority generally did not provide services
outside the boundaries of its fixed routes and paratransit plan to people without
18 Neqron, 86 Wash. App. at 586.
19 Neqron, 86 Wash. App. at 586-87.
20128Wn.2d618, 622, 911 P.2d 1319(1996).
21 Fell, 128Wn.2dat624.
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No. 73758-9-1 /11
disabilities.22 Thus, the court held as a matter of law that the plaintiffs had not
shown that the transit authority discriminated when it did not provide extra
services to people with disabilities.23 The court held that "there is discrimination
[under the WLAD] only when [people with disabilities] are not provided with
comparable services."24 The WLAD does not require a place of public
accommodation to provide greater services to people with disabilities than what
is available to people without disabilities.25 Thus, the trial court did not err when
it determined as a matter of law that the University provided Hartleben the same
opportunity to access its services that it provides students without her disability.
Hartleben also fails to show the required link between her disability and
her financial need. Hartleben relies on cases decided under the federal Fair
Housing Amendments Act of 1988 (FHAA),26 where courts have held that
requiring whole or partial waivers of housing-related fees may be appropriate
when those fees may deny someone an equal opportunity to enjoy a dwelling
due to their disability.27 She argues that the Ninth Circuit's decision in Giebeler v.
22 Fell, 128 Wash. 2d at 639-40.
23 Fell, 128 Wash. 2d at 639-40.
24 Fell, 128 Wash. 2d at 635-36.
25 Fell, 128 Wash. 2d at 639-40.
2642U.S.C. §3604.
27 United States v. Cal. Mobile Home Park Mqmt. Co., 29 F.3d 1413, 1418
(9th Cir. 1994) (motion to dismiss improperly granted when plaintiff did not have
the opportunity to show that fees that applied to all residents for long-term guests
and for guest parking were discriminatory when applied to plaintiff, whose infant
required in-home care); Bentlev v. Peace & Quiet Realty 2 LLC. 367 F. Supp. 2d
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M&B Associates28 supports her waiver request. In Giebeler, the court held that
summary judgment was improper when an apartment complex refused to waive
its policy prohibiting cosigners for a mother of a man with AIDS (acquired
immune deficiency syndrome) who needed to be close to her due to his illness.29
The court's opinion quotes a Supreme Court case, decided under the Americans
with Disabilities Act (ADA or Act),30 U.S. Airways, Inc. v. Barnett,31 to support its
holding that an accommodation can require preferential treatment of a person
with a disability, "'[a]nd the fact that the difference in treatment violates an
employer's disability-neutral rule cannot by itself place the accommodation
beyond the Act's potential reach.'"32
341, 347-49 (E.D.N.Y. 2005) (motion to dismiss denied because an
accommodation for a person with a disability affecting her mobility to move to a
first-floor apartment without incurring a higher fee associated with the first-floor
apartment is an accommodation within the purview of the ADA; court rejected
under U.S. Airways. Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d
589 (2002), the defendant's argument that simply giving plaintiff an opportunity to
rent the first-floor apartment for the amount it would normally charge fulfilled its
obligations under the FHAA); Fair Hous. of the Dakotas. Inc. v. Goldmark Prop.
Mqmt.. Inc.. 778 F. Supp. 2d 1028, 1039-40 (D.N.D. 2011) (trial court denied
summary judgment to property management company where questions of fact
existed regarding necessity and reasonableness of accommodation request to
waive additional fees for assistance dogs of plaintiffs who have mental
disabilities).
28 343 F.3d 1143 (9th Cir. 2003).
29 Giebeler, 343 F.3d at 1144-45.
3042U.S.C. §§ 12181-12189.
31 535 U.S. 391, 122 S. Ct. 1516, 152 L Ed. 2d 589 (2002); see also
Wash. State Commc'n Access Project. 173 Wash. App. at 190 (Washington courts
may look to interpretation of the ADA as a source of guidance.).
32 Giebeler, 343 F.3d at 1150 (quoting Barnett. 535 U.S. at 397).
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But the accommodation must be reasonable.33 In Barnett. the Court held
that when a workplace has an established seniority system, the ADA does not
require that an employer reassign an employee in a manner that conflicts with
that system unless the employee can show special circumstances surrounding
the particular case that demonstrate that the accommodation is nonetheless
reasonable.34 Here, evidence shows that the University requires that all students
pay tuition, and Hartleben has not shown that special circumstances exist to
make breaking this policy reasonable. And in Giebeler. evidence showed that
Giebeler's inability to meet minimum income requirements was a direct result of
his disability.35 Here, Hartleben has not shown a connection between her status
as a person with a disability and her status as a person with financial hardship.
She fails to explain how a tuition waiver would be a reasonable accommodation
for her disability.
Further, the federal cases cited by Hartleben are specific to the FHAA.
But in the context of university learning, federal courts have not required fee
reductions or waivers to accommodate a student where those waivers would be
unreasonable.36 We find Lioton v. New York University College of Dentistry37
33 Barnett, 535 U.S. at 406.
34 Barnett, 535 U.S. at 406.
35 Giebeler, 343 F.3d at 1147.
36 Lipton v. N.Y. Univ. Coll. of Dentistry. 865 F. Supp. 2d 403, 410-11
(SD.N.Y. 2012), affd, 507 F. App'x 10 (2d Cir. 2013); see also Harnett v.
Fielding Graduate Inst., 400 F. Supp. 2d 570, 579-80 (S.D.N.Y. 2005) ("Plaintiff's
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persuasive. In that case, the U.S. District Court for the Southern District of New
York granted the university's motion to dismiss Lipton's discrimination claim
because Lipton's requested accommodations were unreasonable. There, the
university required students to pass a dentistry board exam within a certain
period after graduation and had a policy to require rematriculation each time a
student had to retake the exam.38 After four unsuccessful attempts to pass the
exam, Lipton requested reasonable accommodations that included taking the test
an unlimited number of times without rematriculating and paying the
accompanying fee.39 The court decided that the requested accommodations
were unreasonable for several reasons, including that they would alter important
academic policies, they bore a tenuous relationship to Lipton's disability, and that
his requested fee waiver had no bearing on his alleged disability.40
Similarly, a waiver of a tuition fee does not bear on Hartleben's
performance in the Program due to her disability and is thus unreasonable. The
request for a reduction in tuition—a modification that is not contemplated by
[Fielding Graduate Institute] policy and that is not granted to other students-
would not have 'accommodated' her disability in any way. . . . Therefore, such a
request does not constitute a reasonable accommodation within the meaning of
the applicable statutes."), overruled on other grounds by Harris v. Mills, 572 F.3d
66, 73 (2d Cir. 2009).
37 865 F. Supp. 2d 403, 410-11 (S.D.N.Y. 2012), affd, 507 F. App'x 10 (2d
Cir. 2013).
38 Lipton, 865 F. Supp. 2d at 405.
39 Lipton, 865 F. Supp. 2d at 404-07.
40 Lipton, 865 F. Supp. 2d at 410.
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No. 73758-9-1/15
University's waiver of tuition for Hartleben would only address barriers she faces
due to financial hardship and not those due to her disability. Thus, Hartleben
fails to raise a genuine issue of fact about the University's alleged discrimination
against her by requiring her to pay tuition for classes. The trial court properly
granted summary judgment to the University.41
Hartleben asserts that the University presented no evidence that her
requested accommodation would fundamentally alter its operations as claimed
by the University. When an accommodation would fundamentally alter a service,
it is not reasonable.42 Here, the University provides classes in exchange for
payment of tuition. Providing classes without collecting tuition fundamentally
alters its business model. Further, the University need not present this evidence
until after Hartleben presented evidence of a prima facie case.43 Because
Hartleben did not, the University was under no obligation to make this showing.
Hartleben further contends that a jury should decide if the University
engaged in good faith in an interactive process or investigation to determine
reasonable accommodations. Parties must work in good faith to exchange
41 See Frisino, 160 Wash. App. at 777.
42 See 28 C.F.R. § 35.130(b)(7) ("A public entity shall make reasonable
modifications in policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would fundamentally alter
the nature of the service, program, or activity.").
43 See Fell, 128 Wash. 2d at 634.
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No. 73758-9-1/16
information in order to determine what reasonable accommodation best suits the
plaintiff's disability.44 The evidence shows that the University met with Hartleben
several times and offered her accommodations, including access to the classes
she needed to retake. But Hartleben would only accept an accommodation
allowing her to take classes she needed without paying tuition, which was not a
reasonable accommodation contemplated by WLAD. Thus, she cannot show
that a material issue of fact exists about the University's alleged discrimination
against her.
In her reply brief and at oral argument, Hartleben said she would accept
an accommodation that included listening to the recordings in conjunction with a
University-provided tutor so she can engage in an interactive learning process.
She certainly can request this of the University. But because she did not request
this accommodation from the University before this appeal, the reasonableness
of this requested accommodation is not before us.
CONCLUSION
Because Hartleben is unable to show that comparable treatment under the
WLAD requires that she retake classes without paying tuition, she fails to show a
44 Frisino. 160 Wash. App. at 777.
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No. 73758-9-1/17
prima facie case of discrimination against the University as a matter of law. We
affirm the trial court.
WE CONCUR:
TrU^ep Ai-j S^/w^ 7
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