REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ANDREW W. AUSTIN, Magistrate Judge.
Before the Court are the Defendant Pflugerville Independent School District's Amended Motion to Dismiss (Dkt. No. 9); Plaintiff's Response to Pflugerville Independent School District's Amended Motion to Dismiss (Dkt. No. 11); and Defendant Pflugerville Independent School District's Reply to Plaintiff's Response (Dkt. No. 12). The District Court referred these Motions to the undersigned Magistrate Judge for report and recommendation.
Plaintiff Lieu Tran ("Tran") was employed as a teacher at Connally High School in the Pfugerville Independent School District ("PISD") beginning in the fall of 2006. Plaintiff's First Amended Complaint at 6. Tran alleges he is an individual with a disability as he has been diagnosed with bipolar and panic disorders. Id. at 5.
In his First Amended Complaint, Tran alleges that he requires certain accommodations in order to function in the classroom because of his disorders. These accommodations include a need to paint the walls in his classroom a light or bright color such as yellow; a need for his own printer in order to decrease stress; a requirement that he not be required to teach more than three hours at a time consecutively; and a room to himself in which to take his breaks. Id. at 5-8. The principal at Connally High School from 2006 through the relevant period was Daniel Garcia. Id. at 8. Tran alleges that he apprised Garcia of his bipolar disorder and his need for accommodations in the first couple of weeks of the 2006-2007 school year. Id. Tran alleges that at this meeting, Garcia told him medical documentation of the disorders was not necessary. Id. at 9. Tran received these requested accommodations until 2010.
Tran alleges that at the beginning of the 2010-2011 school year, three days prior to students arriving for the first day of classes, Garcia required Tran to move to a new classroom - a classroom not painted yellow and lacking its own printer. Id. Additionally, Tran was required to give up his room during his conference period. Id. at 9-10. Tran asserts that he notified Human Resources about his bipolar disorder and need for accommodation. Id. He also asserts that at the beginning of the 2010 school year, he notified Human Resources and Superintendent Charles Dupre of his need to re-obtain his previous accommodations, and about the worsening symptoms of his bipolar disorder. Id. at 10-11. Tran asserts that, despite his requests, Garcia refused to grant him the same accommodations he had received the previous four years. Id. at p. 9. Tran also alleges that whenever the subject of accommodations had arisen in the past, Garcia had threatened to make Tran a floater or make him teach "repeater classes." Id. at 11.
Tran pleads that in September of 2010 he spoke to Human Resources about again having his own printer installed in his classroom. Id. On September 16, 2010, Tran provided a letter to the school from his doctor stating that Tran would benefit from having a printer in his classroom. Id. Eventually, Tran's attorney sent the school a demand letter, and PISD agreed to install a printer in Tran's classroom. Id. On November 24, 2010, Tran's psychiatrist sent another letter to PISD requesting that the school paint Tran's classroom with brighter colors and requesting that Tran have his room to himself for his conference periods. Id. at 12. Tran's attorney sent another demand letter on December 9, 2010. Id. PISD ultimately retained a private consulting firm to address Tran's requests for accommodation. Id. In January of 2011, Tran met with George Frias, who worked in PISD's Human Resources Department. Id. at 13. Frias agreed to grant Tran all of his requested accommodations. Id. On January 24, 2011, PISD approved Tran's request to have his walls painted. Id. In March of 2011, Tran spoke with Frias who informed Tran that Garcia wanted to wait until the next year to implement his requested accommodations and was uncertain whether the requested accommodations would be implemented. Id.
Tran alleges in his First Amended Complaint that he experienced heightened stress because of the lack of accommodations, leading to panic attacks and stuttering. Id. He pleads that, rather than implement the requested accommodations, the school simply documented incidents "where he exhibited stress and anger." Id. Tran received a poor performance evaluation. Id. Tran also alleges that the vice principal Sheila Reed harassed him by threatening that his contract would not be renewed and by setting up meetings with him, only to make him wait, and then cancelling. Id. at p. 14. Tran pleads that in March of 2011 Reed changed Tran's PDAS evaluation scores, and used this as a basis for non-renewal of his contract. Id. Tran was informed that his employment contract would not be renewed for the 2011-2012 school year. Id.
On April 14, 2011, Tran met with a friend for coffee, and expressed that he was having suicidal thoughts and thoughts of harming Garcia and Reed. Id. at 15. Tran voluntary sought treatment at Shoal Creek Hospital. Id. As part of the commitment process, a nurse called Austin Police Department and a mental health officer interviewed Tran. Id. They completed the necessary paperwork for an emergency commitment, and Tran was committed into Shoal Creek, as he was determined to be a danger to himself and others. Id. On April 19, 2011, as Tran was discharged from Shoal Creek, he was arrested, based upon complaints made by Garcia and Reed, that Tran had threatened to shoot them. Id. at 16. Tran was later released on bail. Id. On May 31, 2011, based upon the testimony of Garcia and Reed, a Travis County Grand Jury indicted Tran. Id. The case was eventually dismissed. Id. at 3. Tran filed a charge with the EEOC asserting disability discrimination, and it found cause to believe that Tran has been denied reasonable accommodations. Id. at 7, 17. He also pursued having his contract non-renewal reversed based upon errors in the procedure, while the school continued to pursue termination based on Tran's threatening statements made while at the mental health facility. Id.
The parties apparently reached an agreement regarding Tran's separation from PISD, which resulted in Tran resigning. In his Amended Complaint, Tran states:
In July 2011, pursuant to settlement discussions in the termination proceeding, Tran signed a settlement agreement that allowed him to bring forth this complaint that the Pflugerville I.S.D. failed to provide ADA accommodations and modifications.
Amended Complaint at 17. In the motion to dismiss, PISD states that Tran suffered no adverse action in his employment, because he voluntarily resigned, as part of a "separation agreement... signed while represented by counsel, " and characterizes Tran's claim under Title II of the Americans with Disabilities Act ("ADA") as "simply an effort to finesse a Title II denial of access claim, from an otherwise resolved employment issue." Amended Motion to Dismiss (Dkt. No. 8) at 6-7. From this, the Court assumes that Tran released a number of employment claims when he signed the separation agreement, but that the released claims did not include the Title II claim under ADA Tran brings in this case.
In most instances, when an employee believes that he has been discriminated against in his employment because of a disability, he brings such a claim under Title I of the ADA. Title I prohibits an employer from discriminating against a qualified individual with a disability because of their disability in regard to "the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112(a). Tran has not pursued such a claim here, however, and the clear inference from the statements quoted above is that he has not done so because his separation agreement prevents it. Instead, Tran is pursuing his claim against PISD under Title II of the ADA. Title II states that "no qualified individual with a disability shall, by reason of such disability, be 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. § 12132. Traditionally, Title II is used as the vehicle for disabled individuals to sue public entities whose facilities or programs are not accessible to them. In order to establish a cause of action under Title II of the ADA, a person must establish:
(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such ...