Gerald Jeandron v. Board of Regents, No. 12-1724 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1724 GERALD JEANDRON, Plaintiff Appellant, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF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 Affirmed by unpublished per curiam opinion.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, Appellees. Staff Attorney, Baltimore, Maryland, for Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Gerald Jeandron filed an action against the Board of Regents of the University System of Maryland; the University of Maryland President at College Loh in Park his (UMCP); official University Maryland Sally capacity; of 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 complaint: capacity. count Disabilities Jeandron violation one, Act raised of (ADA); count four the two, counts in Americans violation his with of the Rehabilitation Act; count three, breach of contract; and count four, tortious conspiracy to breach contract. Jeandron Jeandron was is blind previously and is accepted disabled into the under the graduate ADA. 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 to that Jeandron was still 3 subject all the rules, 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 continued served to as executing pursue his Jeandron s the settlement doctorate at agreement, Dr. advisor. In dissertation UMCP. Jeandron Paternoster 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 academic hold on his account. University had placed an 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. Jeandron s action is barred by The Defendants alleged that 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 4 because he had not submitted three chapters of his dissertation to his advisor. The letter also referred to a May 29, 2007 letter that advised Jeandron that satisfactory semester and he and had not timely that, if met the progress he department s for continued a to standards second for consecutive 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. 5 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 of informing Jeandron 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. 6 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). 7 The court reviews de novo a district court s order granting summary judgment. G.D.F., Inc., 211 F.3d Providence Square Assocs., L.L.C. v. 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). unless [T]here is no issue for trial 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 statute of limitations. Rehabilitation Act do not provide a 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 the of Jeandron s complaint fall under Maryland three-year statute of limitations for general civil actions as 8 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. Southwestern 1998). Virginia The Gas unlawful Co., 135 practice F.3d occurs 307, when Martin v. 310 the (4th Cir. 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 Pennwalt or Corp. reasonably v. should Nasios, have 550 A.2d known 1155, of the 1160 wrong. (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 Poffenberger, 431 A.2d at 681. the meaning of the rule. 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 9 plaintiff gains knowledge sufficient to prompt a reasonable person to inquire further. Pennwalt, 550 A.2d at 1163. It is Gottfredson s Jeandron s undisputed letter of address. that, January Further, at 8, the 2008, Jeandron very least, Dr. was received at 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. register, even requirement though of he was continuous on notice progress of and furtherance of a graduate student s degree. He did not the University s registration in 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. included the materials it considered in its order. The court 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 10 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 follows the policy is hearsay. say whether the University Further, counsel admitted that Jeandron was aware of the requirement discussed in the materials and considered by the The agreement. There is no disagreement over the accuracy of the that the noted district in the progress is information specifically satisfactory requirement factual also court. court settlement relied upon. Granting broad deference to the district court and reviewing for an abuse of discretion, the district consideration of the materials. court did not err in 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 court s reliance also on the raises judicial continuous 11 bias related registration to the requirement. 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. 555 (1994). Liteky v. United States, 510 U.S. 540, 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 12 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 defeat not sufficient to 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 before contentions the court are adequately and argument presented would not in aid the the materials 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. 13

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