Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 1 of 12 PAGEID #: 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

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1 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 1 of 12 PAGEID #: 22 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION ZACHARIAH ASHLAND, : Plaintiff, : Case No: 1:11-cv-532 -vs- : Judge: : Magistrate Judge: CINCINNATI STATE TECHNICAL AND : COMMUNITY COLLEGE : Complaint and Demand for Jury Trial Defendant. : Plaintiff Zachariah Ashland, (hereinafter referred to as Plaintiff ), by and through counsel, and for his Complaint against Defendant, Cincinnati State Technical and Community College (hereinafter referred to as Defendant ), states the following: INTRODUCTION 1. Each paragraph in this Complaint incorporates all others. 2. This case concerns Defendant s failure to provide a reasonable accommodation to and discrimination against Plaintiff which resulted in physical injury to Plaintiff and other damages. 3. This case is brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794.and Title II of the Americans with Disabilities Act, 42 U.S.C PARTIES 4. Plaintiff has been enrolled in Cincinnati State Technical and Community College. He lives in Delhi Township in the Cincinnati area of Ohio. 5. Defendant is Cincinnati State Technical and Community College (hereinafter

2 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 2 of 12 PAGEID #: 23 Cincinnati State ), which upon information and belief, is a either a political subdivision or an instrumentality of the State of Ohio governed under either Chapter 3354 or 3358 of the Ohio Revised Code. JURISDICTION AND VENUE 6. This Court has jurisdiction over this action pursuant to 28 U.S.C because Plaintiff s claims arise under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C In addition, this Court has jurisdiction over Plaintiff s claims for declaratory relief pursuant to 28 U.S.C and Venue is proper in the Southern District of Ohio, Western Division, because Defendant is located in this district within the meaning of 28 U.S.C and a substantial part of the acts or omissions giving rise to this Complaint occurred in this district. FACTUAL ALLEGATIONS Plaintiff s Disability and Injury 8. Plaintiff has Osteogenesis Imperfecta (hereinafter OI ), which is a bone disease. It is a genetic bone disorder characterized by fragile bones that break easily, known as brittle bone disease. 9. Plaintiff has experienced approximately 300 bone fractures in his life; Plaintiff has limited use of his right arm. 10. Plaintiff is substantially limited in the major life activity of walking and uses a motorized wheelchair. 11. Plaintiff drives a van which has been specially modified to enable him to drive. The modifications require special knowledge to remove and reinstall them. 12. To safely enter and exit his van, Plaintiff uses a ramp on the right side of the vehicle; thus, there must be sufficient space on the right side to deploy the ramp. 2

3 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 3 of 12 PAGEID #: In early September 2010, Plaintiff purchased a parking pass entitling him to park on campus. 14. Plaintiff informed Defendant that he required an accommodation of a van accessible parking space where he can enter/exit his van safely and travel directly in his motorized wheelchair to and from class. 15. On numerous occasions, Plaintiff requested that Defendant accommodate his disability by: providing a parking space with direct access to his classes, enforcement of ticketing and towing in handicap spaces, providing legally compliant signage and ensuring that Plaintiff would be able to access the campus. 16. On March 9, 2011, due to Defendant s failure to provide him with the reasonable accommodation he had requested and to provide equal access to the campus, Plaintiff suffered physical injury. 17. On March 9, 2011, Plaintiff spent over an hour driving around campus looking for a place to park. 18. Finally, Plaintiff spotted an open space at the end of a row on the uncovered, top floor of the Ludlow Parking Garage. This was not a designated handicapped accessible parking space but would allow him to exit his van from the right side. 19. When Plaintiff returned after class, he found that another driver had parked in a traffic lane and blocked in the right side of his van. 20. Plaintiff called Mr. Matt Hill, the official in charge of parking on campus, for assistance. Mr. Hill told him he would get an officer over to him within fifteen minutes. 21. While Plaintiff waited in the rain, his electric wheelchair malfunctioned and became inoperable. 3

4 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 4 of 12 PAGEID #: After about twenty minutes Defendant s Police Officer Cravens arrived. 23. Plaintiff explained to Officer Cravens that he had been assisted in the past in a similar situation, including by a campus police officer, to enter his van from the left and have his wheelchair moved and loaded onto the van. 24. Officer Cravens agreed that Plaintiff would enter his van from the left side and Officer Cravens would move and load the wheelchair. 25. While attempting to enter his van from the left side in the rain, Plaintiff slipped and heard four distinct pops in his shoulder. 26. Plaintiff had to bite the arm of his driver s seat in order to pull himself up the rest of the way. 27. Plaintiff attempted to yell to the officer but was in serious pain and out of breath; Plaintiff asked a student getting into the car next to him to yell for the officer; Plaintiff told the officer what happened. 28. Plaintiff then backed his van out and Officer Cravens put Plaintiff s then inoperable wheelchair into the van. 29. Plaintiff told Officer Cravens that he could not drive and was pretty sure he had broken something. 30. Officer Cravens offered to call an emergency squad but Plaintiff knew his father, Mr. Larry Ashland, would be on the scene shortly. 31. Plaintiff s father came and took Plaintiff home. 32. From the time Plaintiff found his van blocked in, until his father took him home, about 90 minutes elapsed. 33. During the period from when Plaintiff arrived at his vehicle until, Plaintiff s 4

5 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 5 of 12 PAGEID #: 26 father, Mr. Ashland, drove him away, the car on the right side of his van had not been moved or ticketed and no tow truck had arrived. humerus. 34. X-rays the next day revealed that the injury was a fracture of Plaintiff s left 35. Plaintiff was in physical and emotional pain and lost the use of his functional arm as a result of his injuries. 36. Due to his injury, Plaintiff had to wait several weeks before he could begin physical therapy. 37. During the first several weeks after the injury, Plaintiff was totally dependent upon others to feed him, cloth him, clean him, and to move around. 38. He felt helpless and extremely emotionally depressed. 39. Because of his injury, Plaintiff was unable to continue in his classes so he withdrew from them. Prior Events Leading to the Injury Defendant Failed to Plan for the Needs of Disabled Students Such as Plaintiff and was on Repeated Notice of Plaintiff s Need for Reasonable Accommodation and to Access his Classes 40. As early as September of 2010, Defendant engaged in renovations of its parking areas and as a consequence there were fewer parking spaces available for faculty, staff, students and visitors. 41. Cincinnati State had not planned for the needs of students with disabilities during its parking renovation and as an example, the shuttle it purchased to take students to and from the parking lots was not wheelchair accessible and did not have a lift which would have accommodated a wheelchair. 42. The signs designating handicapped parking were not in compliance with the law. 43. Federal law requires that Cincinnati State maintain any accessible route that 5

6 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 6 of 12 PAGEID #: 27 provides ready access to its facilities by individuals with disabilities and ensure that objects blocking such routes are promptly removed. 44. In early September 2010, Mr. Dave Cover, Director of Student Disability Services told Mr. Hill, Cincinnati State s Executive Support Officer, that the college was legally responsible to provide parking for disabled students. Mr. Hill is part of the campus police, and is the official in charge of parking on campus. 45. During the school year, Plaintiff, his mother, Mrs. Cyndi Ashland, and his father called and ed Mr. Hill and other university officials on numerous occasions to complain about lack of handicap accessible parking, vehicles parked illegally and the lack of towing. 46. During this time period Plaintiff missed classes approximately a dozen times due to the inability to find parking. 47. There were several instances where Plaintiff found parking only to return to his van after class and discover he was blocked in because another vehicle was parked on the right preventing him from deploying his ramp. 48. Plaintiff informed Defendant of this and was told if he had further problems to contact campus police. Every time Plaintiff s van was blocked in, he or a family member called campus police who eventually arrived on the scene but did not tow the offending vehicle. 49. After a second incident wherein Plaintiff s access to his van was blocked by another vehicle, Plaintiff s parents began contacting Mr. Hill regarding the difficulties Plaintiff was facing in accessing parking on campus. 50. Defendant acknowledged the complaints and to resolve it requested that Plaintiff call Mr. Hill whenever he had difficulty finding a place to park. 6

7 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 7 of 12 PAGEID #: In order to safely make a call on his cell phone Plaintiff had to pull over and stop to make the call. 52. On several occasions during the Late Fall 2010 Term, Plaintiff was forced to park illegally in the fire lane of College Drive; each time Mr. Larry Ashland would call Mr. Hill to let him know; Mr. Hill initially said this was ok but eventually said this could no longer be used as an option. 53. A few days later Plaintiff was unable to find a spot and called Mr. Hill who helped him find a spot in the staff parking lot. 54. Subsequent phone calls to Mr. Hill often went to voice mail. 55. Plaintiff enrolled in Winter 2011 term taking two classes. 56. During this term Plaintiff would call Mr. Hill for assistance because he was driving around campus and unable to find parking. Mr. Hill helped him find parking on one occasion. 57. During the Winter 2011 term, Mr. Hill stated that the college would not hold a spot for Plaintiff. 58. After another employee parking lot was closed in late February 2011, making finding parking even more difficult, Mr. Hill provided no further assistance to Plaintiff. 59. Plaintiff was becoming increasingly frustrated and emotionally upset at the lack of accommodation and ability to access his classes. 60. Plaintiff s father called Mr. Tony Cruz, the Dean of Students, for assistance for Plaintiff but these calls were not returned. 61. In response, Plaintiff s mother spoke with Mr. Cover who told her to call Carolyn Anderson, the Executive Vice President of Cincinnati State about the parking issues. 7

8 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 8 of 12 PAGEID #: After her fourth call to Dr. Anderson s office, Ms. Kelly Samad, an Executive Assistant in Dr. Anderson s office advised Mrs. Ashland that she had spoken with her supervisor and Dr. Anderson and that Plaintiff was to call her or Mr. Hill if he could not find a parking spot. 63. Ms. Ashland advised Ms. Samad that she was uncomfortable with Plaintiff driving around campus and talking on the phone due to his brittle bone disease. 64. On Tuesday, March 8, 2011, Ms. Samad advised Plaintiff where to park but he was unable to follow her advice due to the presence of large construction vehicles and so missed class because he could not find a parking space. 65. This was the sixth time he missed class during the Winter 2011 term. 66. Mrs. Ashland reported this to Ms. Samad. 67. On March 9, 2011, Ms. Ashland phoned Ms. Samad to inform her of Plaintiff s schedule for the day so she could help him find a place to park. Ms. Samad did not answer the phone so the message went to her voice mail. 68. Plaintiff received no assistance in finding parking on March 9, Defendant s Actions after March 9, 2011 have been Insufficient to Provide Plaintiff with Reasonable Accommodation and Ensure his Access to Classes 69. Sometime after Plaintiff s injury on March 9, 2011, Defendant purchased a handicap accessible shuttle bus with a lift which would allow a person in a wheelchair to safely enter and exit the vehicle. 70. Plaintiff cannot ride this shuttle due to his brittle bone disease as it could result in injury. 71. To date, Plaintiff has not received the accommodation he needs to access the campus. 72. Plaintiff plans to eventually repeat the classes from which he had to withdraw. 8

9 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 9 of 12 PAGEID #: Plaintiff had planned to graduate in 2012; as a result of his injuries, Plaintiff will be delayed in reaching graduation. Plaintiff Plans to Return to School 74. The Winter 2011 term classes were paid for by the Bureau of Vocational Rehabilitation (BVR). 75. On information and belief, BVR will not pay for these classes to be repeated. 76. Plaintiff has received on-going medical treatment for his injuries and continues in physical therapy. 77. Plaintiff does not expect to be physically recovered sufficiently to return to classes at Cincinnati State until at the earliest, the Early Fall 2011 term. FIRST CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT 78. Plaintiff is a person with a disability, within the meaning of 29 U.S.C. 705, who is otherwise qualified to attend and benefit from college at Cincinnati State. 79. Plaintiff s disabilities limit him in several major life activities, including but not limited to: caring for himself, performing manual tasks, walking, standing, lifting and bending. 80. No otherwise qualified person with a disability shall on the basis of disability be excluded from participation in, be denied the benefits of, or otherwise subjected to discrimination in a program or activity which receives Federal funds. 29 U.S.C On information and belief, Cincinnati State receives federal funds. 82. Cincinnati State is subject to the non-discrimination mandate of Section Cincinnati State is a college, university, or other postsecondary institution subject to the terms of Section U.S.C. 794(b)(2). 84. Despite repeated requests, Defendant failed to provide Plaintiff with an accommodation which would allow him to access the benefits of and participate in Cincinnati 9

10 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 10 of 12 PAGEID #: 31 State s program. 85. Plaintiff and his parents repeatedly contacted officials in a position of authority to remedy the denial of access to Defendant s campus, including Mr. Cover, Mr. Hill, Mr. Cruz and Dr. Anderson. 86. These officials failed to provide reasonable accommodation and subjected Plaintiff to discrimination and denied him equal benefit and opportunity to participate in college at Cincinnati State. 87. Defendant s officials failed to adequately plan for the needs of students with disabilities to access the facility via parking during renovation to parking on campus. 88. Taken as a whole and in the multiplicity of their individual parts from early September 2010 onward, Defendant s actions show intent to discriminate and/or reckless disregard of Plaintiff s rights under Section Plaintiff suffered harm, including emotional harm and indignity, loss of the full benefit of equal participation in his classes, tuition for the Winter 2011 term and serious physical injury he endured, as the proximate result of Defendant s repeated failure to provide him with reasonable accommodation and as the result of Plaintiff s intent to discriminate and/or reckless disregard of Plaintiff s rights under Section 504. SECOND CAUSE OF ACTION TITLE II OF THE AMERICANS WITH DISABILITIES ACT 90. Plaintiff is a person with a disability, within the meaning of 42 U.S.C , who meets the essential eligibility requirements and is otherwise qualified to attend and benefit from college at Cincinnati State, a public entity within the meaning of Title II of the Americans with Disabilities Act found at 42 U.S.C No qualified individual with a disability shall, by reason of such disability, be 10

11 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 11 of 12 PAGEID #: 32 excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C As set forth in paragraphs of this Complaint, Defendant has failed to provide reasonable accommodation to Plaintiff, excluded him from the benefits of its program, and subjected him to discrimination. 93. Taken as a whole and in the multiplicity of their individual parts from early September 2010 onward, Defendant s actions show intent to discriminate and/or reckless disregard of Plaintiff s rights under Title II of the Americans with Disabilities Act. 94. Plaintiff suffered harm, including emotional harm and indignity, loss of the full benefit of equal participation in his classes, tuition for the Winter 2011 term and serious physical injury he endured, as the proximate result of Defendant s repeated failure to provide him with reasonable accommodation and as the result of Plaintiff s intent to discriminate and/or reckless disregard of Plaintiff s rights under Title II of the Americans with Disabilities Act. JURY DEMAND 95. Plaintiff demands a trial by jury of all issues triable by a jury. PRAYER FOR RELIEF Wherefore, Plaintiff prays that this Court: A. Direct Defendant to pay compensatory damages for harm Plaintiff incurred in the form of physical injury, pain and emotional suffering, loss of equal benefit to his education and loss of tuition, to Plaintiff as a result of their actions in an amount to be determined by a jury. B. Order Defendant to provide reasonable accommodation to Plaintiff in the form of ensuring Plaintiff has a van accessible parking space available and open to him during all times when he is accessing Cincinnati State s facilities, and that no other vehicles block or impede Plaintiff s use of that space. 11

12 Case: 1:11-cv TSB Doc #: 3 Filed: 08/11/11 Page: 12 of 12 PAGEID #: 33 C. Declare that Defendant intentionally and/or with reckless disregard violated Plaintiff s rights to be free from discrimination, to equal access to its facilities and participation in its program in violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. D. Declare that Defendant failed to offer reasonable accommodation to its policies to ensure Plaintiff s rights to be free from discrimination, to equal access to its facilities and participation in its program in violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. E. Order Defendant to pay statutory attorney s fees and costs. F. Award such other relief as the Court finds just and equitable. Respectfully submitted, s/ Barbara S. Corner Barbara S. Corner ( ) bcorner@olrs.state.oh.us Trial Attorney John R. Harrison ( ) jharrison@olrs.state.oh.us Ohio Legal Rights Service 50 W. Broad St., Suite 1400 Columbus, Ohio Telephone: (614) Facsimile: (614) Attorneys for Plaintiff 12