Michael A. Fondungallah, Esq., Fondungallah & Kigham, LLC, St. Paul, MN, on behalf of Plaintiff.
John M. Mulligan, Esq., and John F. Mulligan, Esq., Mulligan & Bjornnes, PLLP, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
On November 5, 2013, the undersigned United States District Judge heard oral argument on Defendant Lovaas Institute for Early Intervention Midwest's ("Lovaas") Motion to Dismiss [Docket No. 7]. Plaintiff Idil Abdull ("Abdull") alleges Lovaas, a corporation that provided services to treat her son's autism, discriminated against her son based on his race, national origin, and disability. For the reasons set forth below, Defendant's Motion to Dismiss is granted in part and denied in part.
Abdull, a Somali-American, is a resident of Minnesota. Compl. [Docket No. 1] ¶ 1. Her eleven-year-old son, A.A., was diagnosed with autism at the age of three. Id . ¶ 2. Lovaas, a Minnesota corporation, engages behavior therapy to treat children with autism. Id . ¶ 3. When the services are medically necessary, the cost of services for many of the children receiving therapy through Lovaas is covered by Minnesota's Medicaid program known as Medical Assistance ("MA"). Id . ¶¶ 3-4. MA is funded with federal and state funds and requires Lovaas to demonstrate the progress of each child for whom Lovaas receives reimbursement. Id . ¶¶ 4, 13. Lovaas' stated policy is to review each child's progress every six months and to not discharge a child from the Lovaas program until after two six-month periods of unsatisfactory progress. Id . ¶¶ 13, 21.
In approximately June of 2008, A.A. applied and was admitted to the Lovaas program. Id . ¶ 10. At that time, he was five years old, attended preschool, and was not verbal. Id . ¶¶ 11, 16-17. A.A.'s supervisor at Lovaas informed Abdull that A.A. should not attend preschool while he was receiving treatment through the Lovaas program, so Abdull withdrew him from preschool. Id . ¶ 11. Abdull alleges Lovaas did not request that Caucasian children be taken out of school. Id . ¶ 63.
At the first six-month review of A.A. under the Lovaas program, his supervisor informed Abdull that A.A. would be discharged from the program. Id . ¶ 16; Pl.'s Mem. Law Opp'n ("Pl.'s Br.") [Docket No. 13] Ex. 1. Abdull disagreed with the decision because she viewed it as a violation of Lovaas' policy of not discharging clients before two six-month periods had elapsed, and because she felt A.A. had not been given adequate time to show progress. Compl. ¶ 21. Abdull arranged a meeting with Lovaas' Executive Director of Clinical Services, Dr. Larsson, who allegedly told her that A.A., then age six, would be discharged from the program because he "was too old" and could not recover from autism. Id . ¶¶ 18, 20. Thereafter, Abdull spoke with Lovaas' CEO Scott Wright, who also allegedly stated A.A. would be discharged because Lovaas does not treat children after the age of six. Id . ¶ 22.
Abdull later learned that Lovaas was treating autistic Caucasian children who were older than six. Id . ¶¶ 22-24. She also learned that a Caucasian child was allowed to remain in the program for four years and receive therapy for non-verbal autism, even though A.A. was denied the opportunity to receive therapy for his non-verbal autism. Id . ¶ 17.
A.A. remained in the Lovaas program for approximately 21 months. Pl.'s Br. Ex. 1. In January 2010, approximately four months prior to the discharge date Lovaas had established for A.A., Abdull withdrew him from the Lovaas program. Id . Abdull alleges that during the time A.A. was enrolled in the Lovaas program, Lovaas subjected Abdull and A.A. to rules that were not applied to Caucasian families. For example, Lovaas required her to provide documentation after missing therapy sessions, but did not impose the same requirements on Caucasian families. Compl. ¶ 27. Abdull further alleges Lovaas refused to teach A.A. the same material that was taught to Caucasian children, id. ¶¶ 17, 40, and that Lovaas reassigned supervisors for A.A. more frequently than for Caucasian clients, which disrupted A.A.'s progress. Id . ¶ 28.
On December 20, 2010, Abdull filed a charge of discrimination with the Minnesota Department of Human Rights ("MDHR") alleging Lovaas discriminated against A.A. due to his race, national origin, and religion. Id . ¶ 34; Pl.'s Br. Ex. 1. The MDHR found no probable cause to believe Lovaas had engaged in discrimination. See Pl.'s Br. Ex. 2. The MDHR mailed the no probable cause determination to Abdull, but the U.S. Postal Service later notified the MDHR that Abdull had not received the determination. The determination was then successfully served on Abdull at a different address on July 1, 2013. Id . On July 22, 2013, the MDHR issued a letter stating Abdull was entitled to bring a private action against Lovaas within 45 days of being served with the no probable cause determination pursuant to Minnesota Statute § 363A.33, subd. 1(2). Id .; Compl. ¶ 34.
Abdull filed this action on August 8, 2013. The Complaint alleges claims for disability discrimination under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182, and § 504 of the 1973 Rehabilitation Act ("Rehabilitation Act") 29 U.S.C. § 794 (Counts I and II, respectively), and claims for race and national origin discrimination under the Civil Rights Act of 1964 ("Civil Rights Act") (Count IV) and the Minnesota Human Rights Act ("MHRA") (Counts V and VI).
Abdull alleges Lovaas failed to provide A.A. with equal access to Lovaas' services and facilities because Lovaas allowed Caucasian children to continue attending school while they were enrolled in the Lovaas program, and because A.A. was not taught the same material as Caucasian children. Compl. ¶¶ 36-40. Abdull also alleges Lovaas discriminated against A.A. by refusing to continue therapy for him because he was six years old yet continued to provide therapy to Caucasian children older than six, by subjecting Abdull and A.A. to rules not ...