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Bell-Kachelski v. Michigan Protection & Advocacy Service, Inc.

United States District Court, E.D. Michigan, Southern Division

November 20, 2017

LINDA BELL-KACHELSKI, Plaintiff,
v.
MICHIGAN PROTECTION & ADVOCACY SERVICE, INC., and MICHIGAN REHABILITATION SERVICES Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ON COUNT I AND DISMISSING WITHOUT PREJUDICE COUNTS II-V

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         This is an Americans with Disabilities Act (ADA) case in which Plaintiff Linda Bell-Kachelski's alleges discriminatory treatment by two organizations designed to provide services to and advocate for disabled individuals. Plaintiff claims Defendant Michigan Rehabilitation Service (“MRS”) and Defendant Michigan Protection & Advocacy Service (“MPAS”) denied her services and benefits, and failed to provide reasonable accommodations, because of her cognitive disabilities. Plaintiff's complaint also includes four counts alleging that Defendants violated various state laws.

         Both Defendants filed Motions for Summary Judgment. (Dkt. # 21 & # 22.) Plaintiff has responded (Dkt. # 24 & # 25) and Defendants have replied. (Dkt. # 26 & # 27.) The court has duly considered all of the parties' briefing and conducted oral argument on November 1, 2017. See E.D. Mich. LR 7.1(f)(2).

         Plaintiff's federal claim is unsustainable and will be dismissed. Plaintiff's remaining claims are also dismissed, though without prejudice to Plaintiff's right to restate those claims in state court.

         I. BACKGROUND [1]

         Plaintiff alleges that she suffers from a permanent cognitive disability that prevents her from working all day within large groups. Plaintiff learned sign language as a child from her mother. She has provided sign language services as a home health care provider since 2006 and also conducted her own business from 2005-2010 as an independent contractor providing sign language interpreting services.

         The Division on Deaf and Hard of Hearing (“the Division”) within the Michigan Department of Civil Rights administers the certification process for interpreters for deaf and hard of hearing individuals. Plaintiff worked as an interpreter pursuant to the Division's quality assurance certificate program, but in 2007, Michigan began to phase out the quality assurance system in an effort to strengthen its certification requirements for interpreters.

         In 2011, the Director of the Division, Shery Emery, notified Plaintiff that her quality assurance certificate was going to expire and she would need to obtain certification from the Board of Evaluation of Interpreters (“BEI”). In order to obtain said certification, Plaintiff would be required to pass the Test of English Proficiency (“TEP”). The TEP is the only educational requirement for BEI certification. Because Plaintiff had failed the TEP on two prior occasions, Emery expressed concern that ineffective communication by Plaintiff could jeopardize the legal rights and health of deaf persons receiving her services.

         In 2012, Plaintiff submitted a letter to the Division from a psychiatrist stating that she had performance anxiety and requesting a testing accommodation from the Division for the TEP. The Division denied her request because it found she had not sufficiently documented a qualifying disability.

         In November 2012, Plaintiff contacted Defendant Michigan Protection and Advocacy Service, Inc. (“MPAS”) and requested assistance regarding the Division's denial of her accommodation request. MPAS is a private, non-profit organization that exists to advocate for and protect the rights of individuals with disabilities. MPAS provides attorneys to represent individuals with meritorious claims that are within MPAS' program priorities. Separately, MPAS also has a Client Assistance Program (“CAP”) that is staffed by non-attorney advocates who assist persons in receiving rehabilitation services, services for the blind, and independent living services.

         On November 26, 2012, Plaintiff signed a MPAS retainer agreement to have MPAS investigate the Division's denial of her testing accommodation request. MPAS attorney Nicole Shannon was assigned to the file. After conducting research into whether test anxiety could be considered a disability under the ADA, Shannon concluded that she did not have the support she needed to represent Plaintiff and closed her file.

         On April 19, 2013, Plaintiff sought assistance from Defendant Michigan Rehabilitative Services (“MRS”), a division of the Michigan Department of Health and Human Services designed to help individuals with disabilities obtain and retain suitable employment. In order to obtain MRS' services, an individual must enter into an Individualized Plan for Employment (“IPE”) with an assigned counselor. An IPE is a signed agreement between the client and MRS identifying the employment goal and the services required to achieve said goal.

         Plaintiff indicated to MRS that she wished to finish her bachelor's degree in order to become an interpreter. Plaintiff's assigned counselor, Wendy Hilliker, referred her to a psychologist, Harold Sommerschield, for a vocational assessment. Dr. Sommerschield determined that Plaintiff's anxiety symptoms in combination with her below average intellectual functioning warranted test-taking accommodations both for her college exams and the TEP.

         On May 3, 2013, Plaintiff inquired to Hilliker whether MRS would fund the college courses she recently began. Hilliker explained that MRS has a process that requires certain documentation before Plaintiff is eligible for that type of assistance. At the time, Plaintiff was enrolled in English 112: Critical Writing & Reading at The University of Michigan- Flint, a class which she ultimately failed. Plaintiff re-took English 112 in the spring semester of 2013 and again failed. It is unclear whether she received testing accommodations for that course.

         In June 2013, Hilliker stressed to Plaintiff the importance of developing her IPE.

         On July 30, 2013, Plaintiff again contacted MPAS this time about her dealings with MRS. Plaintiff complained that MRS had not sent Dr. Sommerschield's findings to the Division and thus Plaintiff had not received a testing accommodation for the TEP. In accordance with MPAS's standard procedure, Plaintiff signed a retention letter, which stated that MPAS would “investigate [the] status of accommodation documents requested from (MRS). . . [but] ha[d] not agreed to represent [Plaintiff] in this or any other matter.” (Dkt. # 21-9.) MPAS then assigned one of their non-attorney CAP advocates, Lisa Knapp, to Plaintiff's file. Knapp contacted Hilliker, Plaintiff's counselor at MRS, regarding the situation. Hilliker explained that Plaintiff needed to contact Dr. Sommerfield directly to have his letter sent to the Division. Knapp documented the above information in a letter to Plaintiff on Sept. 3, 2013 and closed Plaintiff's MPAS file.

         On August 1, 2013, Dr. Sommerschield faxed a letter containing his findings to the Division. As a result, Plaintiff was provided 50% more testing time on August 2, 2013 when she took the TEP. She nonetheless failed the exam, this for the third time.

         On August 15, 2013, Hilliker met with Plaintiff to discuss her failures at the University and on the TEP. Because Plaintiff's most recent attempt to pass English 112 had been during a shortened spring semester, Hilliker believed her failure did not accurately represent her abilities. Consequently, MRS agreed to provide funding for Plaintiff to take English 112 again as an assessment. Hilliker told Plaintiff that if she passed the English course, “college will be discussed but no guarantee that MRS will continue to pay for classes.” (Dkt. # 25, Pg. ID 792.) Hilliker advised Plaintiff that if she did not pass, MRS would still help her obtain employment, but not as an interpreter. It appears that both Plaintiff and Hillilker incorrectly believed that a bachelor's degree was required to obtain BEI certification. It is unclear who led whom to that conclusion. On Sept. 6, 2013, MRS approved $1, 677.22 to assist Plaintiff with her tuition on an assessment basis.

         On October 1, 2013, Plaintiff went to MRS to see if Hilliker was available to meet. Plaintiff alleges that she overheard an unknown female Caucasian MRS receptionist state, “the nigger is here at five to five, trying to make trouble.” Plaintiff also alleges that the MRS receptionist stated “[y]ou people are always here five minutes before five . . . niggers.”

         MRS claims that Plaintiff arrived at MRS shortly before five and that the receptionist told Plaintiff that Hilliker was not there because thought that Hilliker had left for the day. Hilliker testified that she was using the front copier at the time and overheard the receptionist arguing with someone at the front desk. The receptionist came to Hilliker and allegedly told her that Plaintiff wanted to speak with her. Hilliker claims that Plaintiff then yelled “I heard that, ” stated that the front desk person was rude, and left. Hilliker tried calling Plaintiff the next morning, but did not reach her.

         On October 4, 2013, Plaintiff met with Hilliker and the MRS site manager Don Dees. Hilliker explained that she meant no disrespect to Plaintiff by not coming to the front desk. She was busy packing up files that she needed and did not expect Plaintiff to drop by unannounced. Plaintiff requested a new counselor and Dees refused to assign one. Hilliker tried to schedule a weekly phone call with Plaintiff, but she declined and stated that she did not want to talk with a MRS counselor until the semester ended.

         On October 10, 2013, Plaintiff contacted MPAS CAP's office requesting help for a third time. Plaintiff told MPAS that a MRS receptionist referred to her using a racial slur, that her MRS counselor Hilliker did nothing about it, and that MRS site manager Dees refused to transfer her to a new counselor. MPAS CAP advocate Lisa Knapp was again assigned to Plaintiff's file. Knapp contacted Hilliker who relayed MRS' version of the events. Knapp explained MRS position to Plaintiff and closed her file.

         During this time, Plaintiff remained enrolled at the University of Michigan-Flint. In fall 2013, Plaintiff completed these University of Michigan courses: Introduction to Technology and American Ethnic Literature, Hip Hop, and The Black Family. In the winter 2014 semester Plaintiff took these courses: Dance Topics: Yoga, College Reading & Learning Strategy, Jazz I, Basic Stress Management/Relaxation, Black Arts Movement, and College Writing Workshop.

         In early 2014, Hilliker expressed concern regarding Plaintiff's curriculum. Plaintiff needed 33 credits at the 300 level to complete her degree, but had only taken one such course. Hilliker informed Plaintiff that MRS would not fund course electives, except those necessary to complete a specific degree program. Most importantly, Hilliker advised Plaintiff that she needed a signed IPE before MRS could provide any further financial support for her college degree.

         Hilliker kept a record of what she viewed as problems with Plaintiff providing requested information and documentation for the development of her IPE. Hilliker explained that Plaintiff's IPE could not be completed because she often arrived late to meetings and only stayed 10-15 minutes before abruptly leaving. Plaintiff claims this behavior is symptomatic of her disability.

         On February 7, 2014, Plaintiff asked for a written statement as to why MRS would no longer provide funding for her college tuition. Hilliker sent Plaintiff a letter on February 13, 2014 outlining deficiencies in Plaintiff's file and setting a deadline of February 28, 2014 for a response in which Hilliker requested that Plaintiff identify the next steps she would like to take in her vocational rehabilitation program.

         Sometime in February 2014, Plaintiff contacted MPAS again this time requesting help with MRS' denial of her college tuition funding. Lisa Knapp was assigned to Plaintiff's file again. Knapp spoke again with Hilliker who relayed MRS policy against providing further college funding absent a signed IPE.

         Through Knapp's own research, she discovered that a bachelor's degree is not required to obtain BEI certification. Knapp relayed her belief to Plaintiff that MRS was not obligated to pay for Plaintiff's tuition in light of this fact. Knapp also informed Plaintiff that MRS' had a policy against retroactive payment of tuition for courses already taken. Plaintiff reiterated her desire to change MRS counselors.

         On February 21, 2014, Plaintiff contacted Hilliker and requested that MRS pay the fee for her to re-take the TEP examination. Hilliker did not believe that Plaintiff would succeed in the job goal of interpreter and tried to discuss other career options, in which Plaintiff had no interest.

         On March 26, 2014, Plaintiff met with Donald Dees (the MRS site manager), Hilliker (her assigned MRS counselor), Knapp (her MPAS CAP advocate), Brian Sabourin (Knapp's supervisor at MPAS), and Charlie Rose (a new MPAS CAP employee). Knapp memorialized the following agreements reached at the meeting in a letter (“the April 3 letter”): that MRS would fund Plaintiff's enrollment in English 112 in fall 2014 as an assessment of Plaintiff's ability to proceed with college coursework, MRS would develop an IPE with the goal employment of interpreter and continue to fund Plaintiff's college tuition if Plaintiff passed English 112, MRS would pay the fee for Plaintiff to re-take the TEP examination, and MRS would assign Plaintiff a new counselor. MRS alleges that it additionally told Plaintiff it would not fund any spring or summer coursework.

         On April 29, 2014, Plaintiff met with her new MRS counselor, Vanessa Neilley, to seek financial assistance from MRS for spring and summer coursework. On June 16, 2014, Neilley advised Plaintiff that MRS would not fund English 112 as a summer course because Plaintiff had previously not performed well in shortened spring/summer courses. Neilley also allegedly made a notation in Plaintiff's file questioning why MRS was paying for her college coursework at all since it was not necessary for her to become an interpreter.

         Plaintiff asked MRS for a letter explaining wny MRS would not fund her bachelor's degree in Africana Studies. Neilley provided a letter explained MRS policy and the goal of finding work for Plaintiff.

         On June 17, 2014, Plaintiff contacted MPAS for a fifth time, now requesting help regarding MRS' refusal to fund her summer coursework. Knapp no longer worked for MPAS, and MPAS CAP advocate Charlie Rose was assigned to Plaintiff's file. Rose contacted Neilley who explained MRS' position regarding summer courses as well as his concern regarding MRS providing funding for Plaintiff's degree at all. Rose concluded that because Plaintiff did not have a signed IPE with MRS, there was not anything MPAS could do to help her. However, Rose mistakenly reported in Plaintiff's file that Plaintiff did have a signed IPE with MRS, but it did not include ...


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