GEORGE F. MATHEIS, JR., Appellant/Cross-Appellee v. CSL PLASMA, INC., Appellee/Cross-Appellant
Nos. 18-3415 & 18-3501
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 30, 2019
PRECEDENTIAL. Argued June 18, 2019. Before: AMBRO, RESTREPO, and FISHER, Circuit Judges.
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-17-cv-00785) District Judge: Honorable Sylvia H. Rambo
Rees Griffiths Zachary E. Nahass (Argued) CGA Law Firm 135 North George Street York, PA 17401 Counsel for Appellant
Bruce J. Douglas (Argued) Ogletree Deakins Nash Smoak & Stewart 225 South Sixth Street, Suite 1800 Minneapolis, MN 55402
Donald D. Gamburg Rachel C. Stone Ogletree Deakins Nash Smoak & Stewart 1735 Market Street, Suite 3000 Philadelphia, PA 19103 Counsel for Appellee
Lauri A. Mazzuchetti Kelley Drye & Warren One Jefferson Road, 2nd Floor Parsippany, NJ 07054
John T. Delacourt (Argued) Joshua Penrod Plasma Protein Therapeutics Association 3050 K Street, NW, Suite
OPINION OF THE COURT
AMBRO, Circuit Judge
Congress, when it passed the Americans with Disabilities Act (“ADA”), found that “physical or mental disabilities in no way diminish a person‘s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.”
George Matheis, a retired police officer who has successfully managed a diagnosis of post-traumatic stress disorder (“PTSD“), routinely and safely donated plasma roughly 90 times in an 11-month period at CSL Plasma, Inc.‘s plasma donation facility. CSL barred him from making further donations when he brought his new service dog, Odin, to the facility the next time. It reasoned that it has a policy to bar any individual who is prescribed daily more than two separate anxiety medications or who uses a service animal to manage anxiety.1 In its view, these people are categorically unsafe to donate plasma. The company required Matheis to provide a letter from his doctor stating he had no need for a service animal before it would screen him for further plasma donation. He sued, lost, and appeals to us.
We have two issues. We determine first whether plasma donation centers—facilities where members of the public have their plasma extracted in exchange for money—are subject to the ADA‘s prohibition on unreasonable discrimination. This turns on whether these facilities are “service establishments” under
So we next consider the question posed initially, whether CSL violated the ADA by imposing a blanket ban on prospective donors who use a psychiatric service animal. Here we part with the District Court. Public accommodations like CSL must permit disabled individuals to use service animals unless they can show a regulatory exception applies. CSL has failed to provide evidence to satisfy the relevant exception here—that any safety rule “be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”
I. Factual Background
CSL owns and operates a plasma donation facility in York, Pennsylvania. Its business is collecting human blood plasma from the public and selling it to third parties. It screens prospective donors for known health risks, extracts plasma from qualifying individuals, freezes it, and then ships it to manufacturing plants to be made into medicines. The donation process is intense; each session lasts as long as two
Matheis was involved in a deadly shooting incident while on duty as a SWAT officer with his police department in 2000. After that incident, he had problems socializing and was soon diagnosed with PTSD. His condition sometimes causes him to suffer panic attacks when exposed to crowded or confined spaces, altercations, or helicopter noise. He retired from the police force in 2007 to become a small business owner.
In 2016, Matheis decided to donate plasma to raise extra money. As noted, he did so approximately 90 times during that year at the CSL facility in York. These went off without a hitch, and CSL paid Matheis between $250-300 a month for his donations.
In October 2016, Matheis‘s eldest daughter enlisted in the Navy. Seeing the stress that her leaving caused her father, she bought him a dog, Odin, to help him cope with her absence. Odin was trained as a service dog for Matheis soon thereafter.
During Odin‘s initial training, Matheis brought him to CSL to introduce him to the facility. Immediately on entering the building, his phlebotomist (someone trained to draw blood from patients or donors) told him he could not have a dog on the premises. Matheis did not undergo CSL‘s individualized assessment to determine if he could safely donate that day; instead his phlebotomist referred him to the CSL nurses’ station. There he explained that Odin was a service animal that helped him manage his PTSD. The nurse referred him to a CSL manger, who explained that, under its policies, CSL permitted service animals for the blind but not for anxiety. Matheis again explained that Odin helped him manage his PTSD, a disability under the ADA. After a phone call, the manager told him he could not donate. Matheis offered to leave Odin in his car and donate without him. The manager rejected this, stating he could not donate until he brought back a letter from his healthcare provider saying he could safely donate without Odin. Matheis left CSL and has not returned to donate plasma since.
CSL‘s concern is not related to any health concerns that dogs like Odin pose; rather it has concluded that using a service animal for anxiety means that the donor‘s condition is too severe to undergo safely the donation process.
Matheis filed suit alleging discrimination for a failure to accommodate his condition. To establish his claim, he must show that (1) he is disabled, (2) CSL is a “public accommodation” under Title III of the ADA, and (3) it unlawfully discriminated against him on the basis of his disability by (a) failing to make a reasonable modification that was (b) necessary to accommodate his disability. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001); Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 123 (3d Cir. 2018).
CSL does not dispute that Matheis is disabled or that Odin is a trained service animal. Thus this appeal hinges on the two issues noted above: whether the ADA applies to CSL; and, if so, whether its conduct was unlawful discrimination under the ADA. It moved for summary judgment contending that it was not subject to the ADA or, alternatively, that its policy—
The District Court ruled that the ADA covered CSL, but that the company did not unlawfully discriminate because it had a legitimate, non-discriminatory reason for refusing to allow Matheis to donate plasma, a concern that he had severe anxiety. Matheis v. CSL Plasma, Inc., 346 F. Supp. 3d 723, 734 (M.D. Pa. 2018). The Court buttressed what it recognized as a “necessary, yet counterintuitive,” conclusion, id. at 735, by stressing CSL would let Matheis donate with Odin once he cleared it with a doctor. Id. at 737 (“CSL stated that it would admit Plaintiff if he provided it with a note from a psychologist stating that he could donate safely with Odin accompanying him.“) (emphasis added). But CSL‘s stance is that Matheis may not donate until he can safely donate without Odin.
Matheis appeals the ruling, while CSL cross-appeals contending it is not subject to the ADA at all. The Plasma Protein Therapeutics Association also filed an amicus brief and participated in oral argument, arguing that Title III of the ADA does not apply to plasma donation centers like CSL.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction per
We review de novo a grant of summary judgment. Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672, 678 (3d Cir. 1990). We apply the same test the District Court would use. Dwyer v. Cappell, 762 F.3d 275, 279 (3d Cir. 2014). Under this test, reviewing the facts in the light most favorable to the non-mover, we grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. Discussion
A. Does the ADA apply to plasma donation centers?
The ADA is divided into three titles of regulation—Title I (employers), Title II (governments), and Title III (public accommodations). Title III states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .”
a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
This question has already produced a circuit split. In Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1229 (10th Cir. 2016), a divided panel held that plasma donation centers were subject to the ADA as service establishments. The Court relied on a broad, common definition of “service” and “establishment”—“conduct
The Fifth Circuit in Silguero v. CSL Plasma, Inc., 907 F.3d 323 (5th Cir. 2018), viewed things differently. It made two base observations—the donor is not benefited by donating, and each of the listed service establishments provides services to the public in exchange for money. These features did not apply to plasma donation services. Id. at 329.
The dissent in Levorsen took a similar line. It followed ejusdem generis, a canon of statutory interpretation that interprets a last, general term by looking to the preceding examples. From these the dissenting judge proposed the following definition: a service establishment “offer[s] the public a ‘service’ (1) in the form of (a) expertise (e.g., barbers, beauticians, and hospitals) or (b) specialized equipment (e.g., laundromats and gas stations), (2) for use in achieving some desired end, (3) in exchange for monetary compensation.” Levorsen, 828 F.3d at 1235 (Holmes, J., dissenting). He concluded that plasma donation centers could not qualify as service establishments because donors do not pay money for the service and (confusingly) because the donation centers do not offer their services in order to benefit the public.
[T]o the extent that plasma-donation centers provide services to the public—such as those services identified by Mr. Levorsen and the United States—they do not do so for the public‘s use in achieving a desired end; instead, they provide them for the centers’ use in achieving a desired end. More specifically, plasma-donation centers provide the public with the expertise associated with blood [extraction] . . . so that the centers can sell the plasma to their customers in the pharmaceutical industry (i.e., the desired end)—not so that they can assist the public to achieve some desired end.
Id. at 1243 (emphases in original).
We align with the majority in the Tenth Circuit. First, at least here no support exists for the Fifth Circuit‘s statement that donors “do not benefit” from the act of donating. The record is unequivocal that Matheis and other donors receive money, a clear benefit, to donate plasma.
Second, Judge Holmes‘s attempt in his dissent to distinguish this benefit on the basis of the secondary profit motive of plasma facilities is unpersuasive. A bank, one of the listed examples in
The bank example shows we should not arbitrarily narrow the scope of “service establishments” to entities that receive compensation from customers in the form of money. Banks and their customers exchange sources of economic value that do not always fit into a simple “money for service” model. As noted, customers often receive money from banks for using the bank‘s service. Banks are hardly the only example of companies that pay the public to use their services. Amicus Plasma Protein Therapeutics Association conceded at oral argument that a pawnshop is a service establishment under Title III. It pays money in exchange for people‘s possessions. So too, as the District Court noted, is a recycling center a service establishment; it compensates consumers in exchange for their waste and has been held subject to the ADA. Matheis, 346 F. Supp. 3d at 734 n.9 (citing Estrada v. S. St. Prop., LLC, No. 17-cv-259, 2017 WL 3461290, *3 (C.D. Cal. Aug. 11, 2017)). These examples underscore a simple fact: providing services means providing something of economic value to the public; it does not matter whether it is paid for with money or something else of value.
Hence we conclude that a plasma donation center is a service establishment under the ADA. It offers a service to the public, the extracting of plasma for money, with the plasma then used by the center in its business of supplying a vital product to healthcare providers. That both the center and members of the public derive economic value from the center‘s provision and public‘s use of a commercial service does not divorce the center from the other listed examples in
B. Did CSL discriminate against Matheis?
We next turn to whether CSL violated the ADA when it barred Matheis from donating plasma.
i. Legal standard
The statute requires that public accommodations not discriminate on the basis of disability. Discrimination includes:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, [etc.].
A company regulated under Title III may be held liable for failing to accommodate. This is “a standard that turn[s] on (1) whether the requested accommodation to the program was ‘reasonable‘; (2) whether it was necessary to assure ‘meaningful access‘; and (3) whether it would represent ‘a fundamental alteration in the nature of [the] program.” Berardelli, 900 F.3d at 115 (quoting Alexander v. Choate, 469 U.S. 287 (1985)). The plaintiff bears the initial burden of establishing that the desired accommodation is reasonable and necessary, while the defendant bears the burden of showing that it would fundamentally alter the nature of the program. Id. at 124; see J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 671 (4th Cir. 2019).
Title III entities are required by regulation to “modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.”
This burden differs significantly from the test the District Court seems to have applied when it concluded CSL‘s denial was not based on a “discriminatory animus.” It borrowed the employment discrimination framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
That framework involves burden shifting: a plaintiff must establish a prima facie case of discrimination; when he does, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse action against the employee. If the employer does so, the employee may attempt to show the reason is a pretext to hide discrimination. See, e.g., Walton v. Mental Health Ass‘n. of Se. Pennsylvania, 168 F.3d 661, 668 (3d Cir. 1999).
Because a plaintiff need not show intentional discrimination to demonstrate a violation of Title III of the ADA, Lentini v. Calif. Ctr. for the Arts, Escondido, 370 F.3d 837, 846-47 (9th Cir. 2004), we reject using McDonnell Douglas in this context, and instead follow the Berardelli framework for ADA claims against a public accommodation. Thus we must determine whether CSL has established exceptions that permit a plasma donation center to deny a disabled individual‘s use of a service animal. If none apply, Matheis‘s use of Odin is a reasonable accommodation, and his claim succeeds.
ii. Regulatory exceptions
In Berardelli we concluded that a small group of regulatory exceptions, both within the animal service regulations and listed elsewhere in Part 35, formed the exclusive bases for a government entity to deny a service animal who is a necessary accommodation for a disabled person:
[The regulations] specify the limited circumstances in which it would be unreasonable to require these actors to allow the use of service animals: if granting access would . . . pose a “direct threat” to the health or safety of others, id. §§ 35.139, 36.208, or if the animal is either “out of control” or “not housebroken,” id. §§ 35.136(b)(1)–(2), 36.302(c)(2)(i)–(ii) . . . . Subject to these exceptions, however, the regulations mandate that “[i]ndividuals with disabilities
shall be permitted to be accompanied by their service animals in all areas of [a covered actor‘s facilities] where . . . program participants are allowed to go.” Id. § 36.302(c)(7); see also id. § 35.136(g).
As the citations to Part 36 indicate, identical regulations exist for Title III entities. None is relevant here. The closest fit is
That is not all that is relevant, however. The parties and the District Court each note the eligibility regulation for Title III public accommodations,
The parties and the District Court also note the blood transfusion regulation in
factors that make the donor ineligible to donate. . . . Your assessment must include each of the following factors:
(i) Symptoms of a recent or current illness;
(ii) Certain medical treatments or medications;
CSL contends that it has complete discretion to determine what treatments, including use of service animals, show a donor may be harmed by donating. This overreads the blood transfusion regulation. It does not give plasma donation centers carte blanche to ignore U.S. law, which not only mandates that service animals be allowed,
iii. Is CSL‘s policy a valid safety rule?
Though CSL bears the burden to show its service animal policy is valid under
CSL‘s general policy is to defer a donor who requires more than two medications daily or a service animal for anxiety, until the need for medications or service animal decreases. . . . This policy is not directed to the use of a service dog, as CSL allows service dogs for vision-and hearing-impaired donors, but is based on the severity of the anxiety.
Id.
These statements don‘t get the job done. Indeed, they seem clearly speculative and to generalize widely about individuals who use psychiatric service animals, all of whom CSL apparently views as people with “severe anxiety.” No medical justification or other scientific evidence undergirds CSL‘s implicit conclusion that all those persons have “severe anxiety” and will put staff, other donors, or themselves at risk when donating plasma. This conclusion is not even stated; Dr. Nelson does not connect the dots by attesting that using a service animal indicates “severe anxiety.” This is clearly inadequate to show that CSL‘s policy is based on actual risk and not based on speculation, stereotypes, or generalizations.
CSL‘s main retort is that Matheis cannot now challenge Dr. Nelson‘s declaration because he failed to challenge its reliability before the District Court under
As a final Hail Mary, CSL argues it had other reasons for concluding Matheis had severe anxiety (which we assume for the sake of argument could support deferral for the reasons stated in the Nelson Declaration). Discovery revealed that Matheis had a panic attack after he was deferred from CSL (he confronted a homeless man while leaving the facility) and that some of his past panic attacks have been accompanied by violent symptoms. (See generally CSL Br. at 21–29.) It asserts that these facts show it reasonably required him to seek a doctor‘s signoff that he was safe to donate without Odin.
While we disagree, we note a predicate problem as well. CSL raises this issue for the first time on appeal. Before the District Court it moved for summary judgment on two narrow grounds: (1) that CSL was not a public accommodation under Title III of the ADA; and (2) that its policy barring all anxiety patients who use a service animal to treat anxiety was a legitimate safety rule. See Defendant‘s Mot. for Summ. J. at 12–19, Matheis, No. 1:17-cv-00785-SHR, 346 F. Supp. 3d 723 (ECF No. 27). We will not consider its new argument in favor of summary judgment. See Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that arguments asserted for the first time on appeal are
IV. Conclusion
CSL is a public accommodation under Title III of the ADA, and so it applies to CSL‘s plasma donation center. Hence we affirm the District Court‘s ruling on this issue.
We reverse, however, its grant of summary judgment to CSL on whether it complied with the ADA. In doing so, we do not suggest that CSL would be wrong in the future to require a doctor‘s note stating Matheis may safely donate with Odin. Indeed, had CSL adopted such a stance from the start, we might agree with how the District Court ruled. But CSL concedes that it will only consider Matheis as a potential donor when he provides a doctor‘s note attesting he can safely donate without Odin. CSL‘s lone justification is its service animal policy, which it does not support with evidence showing that policy is based on actual risk and not speculation, generalizations, or stereotypes. Moreover, CSL fails to explain why Matheis, who has managed his PTSD for nearly two decades and safely donated plasma roughly 90 times, should only be considered safe to donate when he renounces the new service animal that helps him better manage his PTSD.
Thus we reverse and remand the District Court‘s grant of summary judgment in favor of CSL. On remand, the Court may determine whether to permit CSL to move for summary judgment on other grounds, to hold trial, or to conclude on the facts presented that CSL violated the ADA.