Covington v. McNeese

996 So.2d 667 (La.3d Cir. 2008)

This landmark ADA case is explained below.

The Problem.  1993-2001.

 
McNeese State University is a public university serving more than 8,700 students.  For 20 years, the University concealed 15,000 violations of the Americans with Disabilities Act ("ADA") on a 1.35 million square foot campus.  Not a single accessible restroom existed in any of these public buildings, and no wheelchair-bound student is known to have graduated prior to 2004.
Collette Covington enrolled at McNeese in the 1990s and became the first person in her family to attend college.  After her first three semesters, she had a 3.6 grade point average, wrote for the student newspaper, yearbook, and campus photography office, and served in the student senate and as a McNeese ambassador.  During this time, this active student saw the plight of those with disabilities on campus and started an organization on their behalf.  She helped to document these problems in numerous newspaper and yearbook articles, such as the one below.  In this article, Collette is comforting a student in a wheelchair.  In the bottom photo, taken in 1993, her six-year old daughter, Jade, is by her side:
Ironically, this disability advocate became confined to a wheelchair her senior year after she fell into a hole and injured her knee on campus. Collette had repeated surgeries, began having frequent seizures, and her health deterioriated.  She had to withdraw from school for a few semesters.  When she returned, she was confined to a wheelchair.  
Between 1996 and 2000, Collette discovered just how inaccessible the campus was.  She could often not get into buildings because there were no accessible ramps.  In buildings with ramps, elevators did not work, and the University refused to move her classes to the first floor.  Because she could not get into any restrooms, she was forced to urinate on herself.  Every semester, Collette optimistically reenrolled in the hope of finishing her final year of college, but was forced to withdraw from 92 hours of classes over five years.  During this time, this honor-roll student's grade point average dropped to 2.07.
During these five years, she was ridiculed and singled-out by instructers because of her disabilities.  Because the only ramped entrances to buildings were often locked, she was often forced to sit outside in the cold and rain.  On January 31, 2001, she was in the campus student union (called the "Old Ranch") waiting for transportion home.  While there, she made a vain attempt to use the inaccessible restroom and injured her arm. 
In February, 2001, Collette sought the assistance of a former classmate, Seth Hopkins, who had recently graduated from law school.
 
                    
                         
                               Read Collette's affidavit.

The Lawsuit.  2001-2007.

 
Though Collette had no money to pay him, Seth accepted the case and made McNeese aware of the problem.  After months of ignored letters, he filed suit on Collette's behalf. 
 
After suit was filed, McNeese began aggressively calling Collette and threatening to sue her for the loans she took during the semesters she was forced to withdraw.  McNeese reported her loans as delinquent and left Collette with ruined credit, a ruined grade point average, physical injuries, severe depression, and no prospect for a college degree or employment.
McNeese also began spying on Collette.  Collette noticed a black vehicle parked outside her home with a person inside, watching and filming her intermittently for several years.  This frightened her and caused great fear and emotional distress.  Years later, Collette acquired some of the footage secretly taken of her.  The shot below shows Jade (now 16 years old) loading her mother's wheelchair for a doctor's appointment:
McNeese paid a man to serve as its Director of Services for Students with Disabilities.  Seth took the Director's deposition in 2003. The Director testified that he was aware of the problems faced by those with disabilities, but he often did nothing about it.  He talked about how "little people in wheelchairs" with "little arms" couldn't reach McNeese's elevator buttons. He justified his own disability rights office being in an inaccessible location by saying: "I just -- I go wherever they put me.  I don't know.  I think it would probably make more sense to be on the first floor, but I don't know.
When the Director was asked whether he had investigated Collette's accident, he pretended not to know where the student union was located.  As Seth explained in one brief:
"This would be comical if it did not establish such a blatant, intentional disregard for the safety and well-being of the disabled by the very man responsible for assuring their safety.  Delaney's claim that he could not investigate Covington's accident more than two years after it occurred because he could not find the student union is not just an admission of mind-numbing incompetence; it rises to the level of an intentional refusal to address Covington's grievance, especially considering that the Old Ranch is located only a few hundred feet from Delaney's office.  This is particularly ironic for a man charged with answering questions from the disabled and who claims that, "Pretty much just I'm a wealth, I guess, of information, you know."
 
In 2005, Seth deposed the president of the university, in the hope of persuading him to do something about this systemic problem.  Instead, the president testified:
"Whether or not it's fundamental for them [the disabled] to get into that student union annex or that it's fundamentally important for them to obtain an education, I would question that.  I'm not sure I would regard it as a high priority."
McNeese was awash in money.  It was one of the only universities in the state to receive approximately $2 million in dedicated annual revenue from local casinos, and its alumni had raised $55 million in recent years.  Its operating budget doubled in less than a decade, despite flat student enrollment.  At the time of the president's deposition, McNeese had approximately $1.1 million in surplus ADA funds that it refused to spend on accommodations. 
 
Despite McNeese's ability and duty to comply with the law, the president testified that if disabled students wanted an accessible bathroom, they should pay for it.  In fact, they already had.  Ten years earlier, Collette's organization held fundraisers and presented McNeese with money to help with accommodations.  McNeese stole that money.  When Seth offered to pay to renovate a bathroom out of his own pocket, at an estimated cost of $4,000,  McNeese ridiculed him.
Seth encouraged Collette to reapply to McNeese and finish her degree.  He frequently called and wrote McNeese's lawyers and believed that they would counsel their client as to its legal obligations.  
 
Collette attempted to reapply in 2005. Rather than offer accommodations, McNeese's Director of Services for Students with Disabilities angrily told her she was unwelcome, and that she should enroll at another school 75 miles away.  Collette was humiliated.
Collette attempted to reapply in 2006.  This time, McNeese's Director of Services for Students with Disabilities made it clear he was still angry with Collette because Seth had taken his deposition.  He yelled at her and criticized her for filing her lawsuit against McNeese.  He told her that she was "nobody special" and reiterated that she would not be accommodated at McNeese in her wheelchair and was unwelcome on campus.  Once again, she felt humiliated and belittled.
Collette attempted to reapply in 2007.  Seth learned that McNeese had not changed its position, and she did not schedule any classes or attempt to contact McNeese's director.
With no option for negotiation, Seth filed a motion for summary judgment to ask the court to order McNeese to accommodate Collette. 
 
McNeese responded by admitting that it violated the ADA, but refusing to do anything about it.  Instead, it attacked Collette.  It called her crazy, and claimed that she had conspired with her physicians, the Social Security Administration, and the State of Louisiana to endure unnecessary surgeries so that she could pretend to be disabled for more than a decade.
McNeese also stated in court pleadings that it did not need compliant bathrooms because the ADA did not protect the right to urinate.  It blamed Collette (who now uses a catheter) for not learning to hold her bladder all day.
Read Collette's Memorandum in Support of Summary Judgment
Watch PowerPoint explaining Summary Judgment
December, 2006 summary judgment hearing.

McNeese's First Appeal. 2008.

 
The trial judge was a McNeese graduate whose daughter taught at the University.  He expressed disbelief at the evidence and confidence that McNeese was trying to do the right thing.  He was reluctant to rule against the University, but after three hearings in December, 2006 and January, 2007, he changed his mind.  He thanked Seth for bringing this problem to McNeese's attention and ruled that Covington had proven her case. 
McNeese appealed.  The Appellate Court drafted its longest civil opinion of 2008, which concluded that McNeese's basis for appeal was not only meritless, but its arguments sanctionable, "frivolous," a "concoction," "completely irrational," "indefensible," having "audacity," and "absurd."  It held on November 5, 2008:
"We cannot fathom that McNeese felt no need, regardless of whether it was required by law, to upgrade a single women‘s restroom into ADA compliance in a building that houses, inter alia, the two main student cafeterias on campus, offices for student government and activities, and a state-of-the-art computer laboratory. McNeese‘s decision to ignore a federal mandate is reminiscent of the intolerance of the past. We had hoped that the days where a court has to step in to ensure that people were treated equally under the laws of this country were gone. Yet, still, McNeese is emboldened enough to bring such a case to an appellate court where a published, written opinion will forever memorialize its discrimination against this country‘s disabled citizens. It is hoped that McNeese will reassess its attitude toward its disabled students. It is also hoped that McNeese will prepare and publish a transition plan as required by the ADA."
              Read Collette's Appellate Brief
              Read Collette's Appellate Reply Brief
              Read Appeals Court's First Ruling, Covington v. McNeese,
              966 So.2d 667 (La.3d Cir. 2008).
              Read "Access Denied," August 6, 2008.  Inside Higher Ed.

Retaliation, Recusal, and Second Appeal.  2008-2009.

Despite this ruling, McNeese still refused to accommodate Collette.  The case caught the attention of the U.S. Department of Justice, which began a federal investigation.  The ensuing investigation resulted in a compliance degree against the University of Louisiana System's entire eight campuses.  The U.S. DOJ later sent a nationwide press release stating:
"The United States initiated an investigation of the university after the state attorney general's office took the position - in private ADA litigation against the campus - that it was not required to have an accessible toilet room in its primary student union building."
McNeese was required to send an anti-retaliation to its 8,487 students and employees to assure that its officials understood the consequences of retaliation.
                         Read U.S. DOJ Press Release
Despite this, McNeese continued to retaliate against anyone associated with the case.  For example, a McNeese Physics professor of Italian ancestry became confined to a wheelchair in late 2009 and signed an affidavit for Collette describing the difficulties he encountered on campus.  Soon after, someone with after-hours access spray painted "DEGO DIE" on his office door and sent an email from the McNeese server stating:
"DEGO DIE !!!!!!!!!!!!  No Degos or cripples at McNeese.  You complain and talk too much.  Shut up or you will die !!!!!!!!!!!  You have been warned. 
 
Your killer, Whiteboy."
McNeese responded by firing the professor because he might "hurt himself" on campus in a wheelchair.  He had been repeatedly rated the best professor in the Physics Department, brought enormous grant money to McNeese, and was affiliated with pretigious associations which brought honor to McNeese.  He was forced to sell his home and flee Louisiana in fear.
Because McNeese still refused to accommodate Collette, Seth was forced to file six motions to compel, sanctions, and a motion for a court order.  Two days before the hearing, the Louisiana Attorney General's Office intervened and further delayed the case by filing a motion to disqualify the judge.  It argued that the judge was "paranoid" and could not be fair to his own alma mater.  The State went as far as to introduce into evidence recordings that it secretly made of the judge's telephone calls with his son (who was in jail at the time).  After a lengthy hearing and appeal to the Supreme Court, McNeese's request was granted, and a new judge presided over the case.
                       

Consent Judgment.  2010.

 
 
On April 23, 2010 - 3,260 days after suit was filed - McNeese unexpectedly agreed to end litigation.  For the first time, it admitted that Collette was disabled and had the right to attend college in a wheelchair.  McNeese further agreed to spend approximately $13.8 million to upgrade its campus.  It offered - and Collette accepted - a monetary settlement and six-year scholarship.  After 17 years of fighting for the right to attend college in a wheelchair, Collette finally had the chance to attend classes in accessible buildings.
                        Read Consent Judgment
Collette eagerly used the opportunity.  On Saturday, December 17, 2011, she finished her senior year and became the first person in her family to graduate from college. Jade - the six-year-old child who helped Collette advocate for those with disabilities in 1993 - now had a five-year-old son.  Collette received two degrees, and Seth was there to help celebrate.

McNeese's Third Appeal.  2010-2013.

Two years later, Collette used the balance of her scholarship to receive a Master's Degree from McNeese.  Today, she is a public school teacher for special education children.  She loves her job.  
 
Unfortunately, Seth was required to litigate for another three years.  He had spent thousands of hours and tens of thousands of dollars working on this case without pay.  He sacrified other employment opportunities and clients and, by law, was entitled to be compensated by the discriminators.
 
McNeese refused to concede that Seth was entitled to anything for his work.  It put him on trial for six days.  McNeese's lawyers called him "slow," "greedy," and unethical, blamed him for undermining the public's confidence in the law, and accused him of "fraud," "shenanigans," "propaganda," and "misconduct."  McNeese called him a "pretty please" lawyer for extending professional courtesies and claimed he was incompetent, "obsessive," dishonest, had imaginary friends, committed a "felony," and should be "disbarred." 
 
It sought his health, employment, and financial records, investigated his friends, and harassed his former employer until it was forced to file a protective order against McNeese.  McNeese accused Seth of cheating Collette and even resorted to showing the Court a PowerPoint cartoon depicting him as a liar.
Four experts testified that Seth had earned between $5 million and $13 million.  McNeese's expert had no firm opinion about the value of his services.  The court awarded Seth and his co-counsel approximately $1.3 million. 
                     Read Court's Written Reasons for Judgment.
                     Read "McNeese ordered to pay $1.3M to lawyers," Lake Charles
                     American Press, March 21, 2011.
                                                              Watch "MSU ordered to pay up," KPLC-TV (NBC) 
                                                              March 29, 2011
 
 
This was also reported by:
"Judge to McNeese State: Pay Lawyers $1.3M," USA Today, March 29, 2011.
Daily Journal, Indianapolis, Indiana, March 29, 2011.
Detroit Legal News (legalnews.com), March 30, 2011.
KALB television, Alexandria, La., March 30, 2011.
KATC television, ABC, Lafayette, La., March 29, 2011.
KNOE television, Shreveport, La., March 30, 2011.
KTUL television, Tulsa, Ok, March 29, 2011.
The Republic, Columbus, Indiana, March 29, 2011.
Victoria Advocate, Victoria, Tex., March 29, 2011.
WLOX television, Biloxi, Miss., March 29, 2011.
Americans with Disabilities Act ADA News (ada-law.info), March 28, 2011.
AbilityQuest.org, March 28, 2011.
 
McNeese appealed again.  It maintained its argument that Seth was not entitled to be compensated anything for more than a decade of labor. 
 
Rather than reduce Seth's fees, the appellate court increased them to nearly $2 million.  It referred  to Seth as "eloquent," "truly devoted," "gallant," and presenting a "well-orchestrated case worthy of emulation by the most seasoned attorneys" for his "superior performance" in a "rare and exceptional" case. Covington v. McNeese, 98 So.3d 414 (La.App. 3 Cir. 9/5/12).   It held:
"We cannot imagine a more compelling case than the one before us in which Plaintiff's attorneys should be fully compensated . . . We are firmly convinced Hopkins presented a well-orchestrated case worthy of emulation by the most seasoned attorneys."
"Against the odds, Hopkins filed a well-documented and thorough motion for summary judgment which avoided a longer, more protracted, and more expensive litigation to bring this matter to an end."
"The trial court noted Hopkins took a personal interest in the case, passionately pursued the interests of his clients, and immersed himself in ADA law in order to provide the most effective representation he possibly could.  He relentlessly pursued the Covington case and ultimately prevailed."
"McNeese's prolonged militant behavior is reason enough for awarding an enhancement.  When coupled with the extraordinary success achieved by Covington's attorneys, it appears to more than meet the 'rare and exceptional' circumstances mentioned by the United States Supreme Court."
"Additionally, the substantial financial benefit gained by McNeese in receiving nearly fourteen million dollars for improvements to its facilities by the action pursued by Hopkins as a private attorney general is no small matter."
"It is the court's duty to likewise send a message to the bar, experienced as well as eager young lawyers, that they may rely upon the precepts of law as well as fundamental fairness and fair-play, to protect and safeguard them against the personal and financial costs of truly devoted representation of their clients.  These attorneys' representation spanned a decade of hard work and sacrifice in the face of obstinate resistance to laws guaranteeing basic human and civil rights and public attacks on their character and worth.  To do anything less is a disservice to the citizens which these laws are designed to protect and to the gallant attorneys willing to make years of personal sacrifice in the cause of justice."
"Our courts must always remain mindful that there are a limited number of attorneys willing to bear the personal cost and sacrifices inherent in most civil rights litigation.  We cannot underestimate the chilling effect this type of militant and pernicious behavior heaped upon Plaintiff and her counsel for ten years, and even now on appeal, has upon other attorneys, young and old, as well as potential plaintiffs."
"We have limited our enhancement to this minimal remedy only out of consideration that the awards will be borne by the taxpayers of this state, rather than exclusively by those who willfully and inexcusably practiced discrimination plainly and expressly forbidden by both Louisiana and federal law. Were this not the case, our ruling would surely be to accept young Hopkins' eloquent plea for greater compensation.  Perhaps, if given the opportunity, our supreme court may be inclined to see differently, employing a greater enhancement method, which we would deem a welcome clarification of existing jurisprudence."
                         Read Collette's Appellate Brief
                         Read Louisiana Advocacy Center's Amicus Brief
                         Read Covington v. McNeese, 98 So.3d 414 (La.App. 3 Cir. 9/5/12).
                         Read "McNeese on hook for $1.45M: Appeals court raises amount 
                          school must pay attorney from lawsuit," American Press, Sept. 6, 2012.
 
 
                         Read "Texas lawyer wins hard-fought fees in bitter disability case," 
                          National Law Journal, Sept. 6, 2012.
 
McNeese appealed this ruling to the Supreme Court, which ultimately reduced Seth's fees to the level awarded by the trial court.  Collette graciously accompanied Seth to every appeals court hearing to offer her support. 
                          Read Collette's Supreme Court Writ Application
                          Read Collette's Supreme Court Writ Opposition
                          Read Collette's Supreme Court Exhibits

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