Leslie GREER, Plaintiff-Appellant v. RICHARDSON INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
No. 10-11254.
United States Court of Appeals, Fifth Circuit.
March 14, 2012.
287
Bridget Ranee Robinson, Adrienne Rene Butcher, Walsh, Anderson, Brown, Gallegos & Green, P.C., Austin, TX, for Defendant-Appellee.
Palmer D. Bailey, Esq., Law Office of Palmer Bailey, Addison, TX, Kenneth D.
Before STEWART, CLEMENT, and GRAVES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Leslie Greer appeals the district court‘s grant of summary judgment in favor of Richardson Independent School District (“RISD“) on her claims of discrimination under Title II of the Americans with Disabilities Act (“ADA“) and § 504 of the Rehabilitation Act. For the following reasons, we affirm.
FACTS AND PROCEEDINGS
Greer, who uses a wheelchair for mobility as a result of a spinal cord injury, attended her son‘s junior varsity football game at RISD‘s Berkner B stadium, located at Berkner High School in Richardson, Texas, on October 4, 2007. After entering the stadium, Greer realized that the only way to access the stadium‘s bleacher seating was by climbing a flight of stairs. Unable to access the stadium‘s bleachers, Greer maneuvered her wheelchair to an accessible paved area adjacent to the bleachers where she watched the football game through a chain link fence that surrounds the field while her husband watched the game from the bleachers. From her viewpoint, Greer claims she was
On February 1, 2008, Greer sued RISD, claiming that it discriminated against her by excluding her from participation in the benefits, programs and activities of a governmental entity receiving federal assistance, in violation of Title II of the ADA,
The parties filed cross-motions for summary judgment in December 2008. At a motion hearing on March 4, 2009, the district court granted leave for RISD to amend its answer to assert the affirmative defense of “undue burden” with respect to making accessibility modifications to the Berkner B stadium and reopened discovery as to that limited issue. On July 9, 2009, the Court granted Greer leave to file a Second Amended Complaint, in which she expanded her claims to include accessibility allegations regarding other aspects of the Berkner B stadium including restroom access, curb cuts, ramp access to a public right of way, and access to the track surrounding the football field. RISD then filed a Third Amended Answer on July 17, 2009.
Both parties again filed cross-motions for summary judgment on August 3, 2009, and Greer also filed a motion to extend discovery and allow subsequent briefing on RISD‘s defense that modifications to the Berkner B stadium would represent an undue burden. The district court granted Greer‘s motion and extended the case deadlines once again.
On February 1, 2010, the parties filed their third and final cross-motions for summary judgment. Greer also filed a Motion to Strike Undue Burden Defense and for Sanctions on April 21, 2010, claiming RISD‘s undue burden defense was asserted in bad faith. Greer‘s motion argued that RISD never had a factual basis for asserting the undue burden defense because it never produced evidence that it had conducted the three-part analysis required under
The district court granted RISD‘s motion for summary judgment in part on August 2, 2010, finding that Greer failed to present a prima facie case of discrimination under Section II of the ADA. Greer v. Richardson Indep. Sch. Dist., 752 F.Supp.2d 746, 754 (N.D.Tex.2010) (“Greer I“). In addition, the district court granted summary judgment in part to Greer on her allegation that a ramp installed at the stadium did not comply with ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG“) requirements, id. at 758, denied Greer‘s motion to strike and for sanctions, id., and reserved judgment on Greer‘s claim of parking lot accessibility pending additional briefing from the parties. Id. at 757.
On August 12, 2010, the parties submitted a Joint Stipulation, agreeing on the number of parking spaces available at Berkner B but disagreeing as to whether the accessible spaces comply with the ADAAG. Also on August 12, 2010, RISD filed a Motion for Reconsideration as to the grant of summary judgment in favor of Greer on the ramp, claiming there was summary judgment evidence proving the
The district court disposed of all pending motions and claims on November 12, 2010 in favor of RISD, granting its motion for reconsideration regarding the ramp and subsequently granting summary judgment in favor of RISD on the issues of the ramp and the accessible parking spaces in light of Frame. Greer v. Richardson Indep. Sch. Dist., 752 F.Supp.2d 759, 762-63 (N.D.Tex.2010) (“Greer II“).
Greer appeals the district court‘s rulings on summary judgment and on the denial of sanctions. Greer argues the district court improperly weighed evidence in granting summary judgment in favor of RISD and that it erred by failing to find as a matter of law that relegating disabled patrons to a non-accessible area of the stadium is discriminatory. Greer also challenges the district court‘s reversal of its own decision regarding the accessible ramp in light of Frame and continues to assert her claim that RISD should be sanctioned for raising the undue burden defense.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same legal standard as the district court. Int‘l Fid. Ins. Co. v. Sweet Little Mex. Corp., 665 F.3d 671, 679 (5th Cir.2011). Summary judgment should be rendered if the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
A. ADA and Existing Structures
Title II of the ADA 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.”1
When enacting the ADA, Congress acknowledged that some public entities operating then-existing buildings and structures would be unable to comply with all technical aspects of the new ADAAG regulations. Accordingly, the regulations promulgated by the United States Attorney General to implement the requirements of Title II differentiate between structures built prior to the Act taking effect in January 1992 (“existing facilities“) and facilities built or altered after January 1992. Tennessee v. Lane, 541 U.S. 509, 531-32, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004);
When considering ADA compliance for such existing structures, the touchstone is thus not the facility‘s technical compliance with the ADAAG, but is instead “program accessibility.” “A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”
B. Greer‘s Prima Facie Case
To establish a prima facie case of discrimination under the ADA, Greer must demonstrate: (1) that she is a qualified individual within the meaning of the ADA; (2) that she was excluded from participation in, or was denied benefits of, services, programs, or activities for which RISD is responsible; and (3) that such exclusion or discrimination is because of her disability. Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir.2004). If Greer makes a prima facie case, RISD may assert an affirmative defense by showing that the requested actions would constitute an undue financial or administrative burden.
We note that disability discrimination differs from racial discrimination in the constitutional sense. Melton, 391 F.3d at 672.4 To determine whether RISD discriminated against Greer on the basis of her disability, we rely on the language of the ADA itself and its applicable definition of discrimination—whether the junior varsity football game at Berkner B was an accessible program at an existing facility. If the football game is not readily accessible to someone with a disability, Greer may have stated a prima facie case of discrimination. On the other hand, if it is apparent that RISD provides sufficient program access to football games held at Berkner B, Greer has failed to establish a prima facie case and the district court was correct in denying Greer‘s summary judgment motion.
The parties do not dispute that Greer satisfies elements one and three in establishing a prima facie case: she is a qualified individual under the ADA and any alleged exclusion or discrimination was a result of her disability—her inability to access the Berkner B bleachers while in a wheelchair. As a result, the primary question before this court is whether the district court properly found that Greer failed
Establishing exactly what constitutes sufficient access to the “program“—watching her son‘s football game—was a primary concern of the district court and continues to be a matter of debate on appeal. The following exchange between the district court and Greer‘s counsel at the hearing on the parties’ cross-motions for summary judgment is instructive.
The district court:
That the key issue with respect to this subject, as the plaintiff would characterize it, is that [providing alternative accessible viewing areas] doesn‘t do because it‘s not just watching the game that matters, which Ms. Greer, or others, seated in one of those areas could do, but it is the experience of watching the game with the other fans.
Greer‘s counsel in response:
But to the extent that the basic argument is that are you entitled to keep the disabled out of the general seating area versus not, then I would agree that that is a fair assessment of one of the central issues before the Court.
In light of the prior proceedings and the parties’ briefs, we understand Greer‘s general contention to be this: “program access” is more than just the ability to watch the football game at the Berkner B stadium. Instead program access requires that a disabled individual such as Greer not only be able to watch the game but also experience the game from the general admission public bleachers so as to not be separated from other attendees.
There is an aspect of Greer‘s segregation argument that rings true as noted by the district court during its hearing on the cross-motions for summary judgment. It would likely not be permissible for a public entity such as RISD to claim it provides program access if it required disabled individuals to sit alone in an area far removed from her companions and other attendees, such as behind the goal posts at the end of the field, when all other attendees were seated along the sidelines. Yet we need not determine where that line exists here—how far away is too far away—because, as the photos in the record show, all of the accessible seating offered by RISD is either immediately adjacent to or in front of the bleacher seating for the general public.
However, we disagree with Greer‘s suggestion that any separation from the general public seating area is ipso facto discrimination and we do not agree with Greer‘s argument that she was denied program access at the Berkner B stadium. Like the district court, we note that much of Greer‘s argument focuses on “the actual state of ADAAG compliance at the facility” and conflates these observations about facility deviations from ADAAG standards, which are applicable to newly constructed or modified facilities, with RISD‘s obligation to provide program access at an existing facility.5
Furthermore, Greer‘s argument that “Keeping the disabled out of the public seating—without any justification—is a denial of program access on its face,” Reply Br. 10, would render the “program access” standard meaningless. Under such a reading, a public entity would be required in all cases to modify existing facilities whenever the general public seating area was not wheelchair accessible or ADAAG compliant. Yet this is precisely what the program access standard for existing facilities was meant to avoid by allowing public entities to ensure that disabled individuals can readily access the program at the facility but not necessarily all aspects of the facility itself.
As an example of conflating program access with facility access, Greer asserts in her opening brief that “The undisputed expert testimony in the case is that the [track] surface is not accessible” as an alternative seating area and supports the statement with citations to the record. However, the cited portions of the record consist of only two items: (1) a portion of her expert‘s report claiming that the surface would not comply with current ADAAG standards (but lacking any objective measurements in support of the claim),6 and (2) a RISD representative‘s response to a deposition question from Greer‘s counsel in which the individual simply answers “I don‘t know” to whether the track would have to meet ADAAG new construction standards for an accessible surface.7 Despite Greer‘s arguments, the
Laid bare, Greer‘s claims in her motion for summary judgment consist only of her own statements of dissatisfaction from her experience at one football game at Berkner B and her expert‘s report that opines on various deviations of Berkner B‘s structural elements from current ADAAG requirements for new or modified facilities. Many of the observations in the expert report do not relate to whether RISD provides program access to disabled individuals attending events at Berkner B and others are inapposite because Greer failed to offer evidence that the allegedly non-compliant structures in or around the Berkner B stadium have been modified since the ADA was enacted in 1992 and thus may be required to comply with the ADAAG requirements. Additionally, Greer has failed to demonstrate how minor deviations from the ADAAG requirements in various parts of the stadium identified by her expert, such as a quarter-inch variance in “maximum beveled slope” on one designated wheelchair viewing area or bathroom mirrors that are mounted seven inches too high, prevent her or other disabled individuals from accessing the program at Berkner B, i.e., watching a football game.
Instead, the district court was correct that, based on the evidence offered by RISD in support of its motion for summary judgment and not contradicted by Greer, Berkner B stadium provides program accessibility when viewed in its entirety. RISD provided sworn statements from two individuals that use wheelchairs when they attend events at Berkner B, both of whom stated that they had no issues attending events. Greer I, 752 F.Supp.2d at 754-55. Greer herself admitted she was able to access the parking lot, navigate into the stadium, buy a ticket, make a purchase from the concession stand, and view a portion of the game.*
Nonetheless, as Greer points out, “seeing the program is the entire reason for going.” Most attendees at a high school football game, particularly parents of students playing in the game, are not going to the stadium for the quality of the hot dogs at the concession stand. Thus, being able to do things such as buying a ticket and visiting the concession stand would not be sufficient to provide program access if she was unable to view the actual football game.
Even taking as true Greer‘s claim that she was only able to see 15% of the game from her vantage point next to the bleachers, the problem with Greer‘s single experience is that it appears to be, at least in part, a product of her own choices and was strongly contradicted by RISD‘s evidence. She acknowledges that she never asked if she could be accommodated by sitting somewhere else in the stadium, such as the track that surrounds the football field, that would have provided an unobstructed
Moreover, this was a single experience for Greer in contrast to the sworn statements by other disabled individuals who have attended numerous events at Berkner B without issues. Had she returned to the stadium several times and routinely not been provided suitable seating despite attempting to seek out event staff or asking for better accommodations, her prima facie claim might ring true. However, based on the record before this court, she has not returned to Berkner B stadium and thus her claims are tied to her single experience at the facility.
By pointing out Greer‘s failure to make any inquiry regarding more suitable accommodations, we do not imply that the burden is or should be on disabled individuals to actively request accessible accommodations in all situations.9 As this court, and courts in other circuits have held, there is a common sense aspect to determining whether a public entity has provided accommodations for a disabled individual, part of which requires the public entity be made aware of the inadequacy of the accommodations provided. See E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir.2009); Robertson v. Las Animas Cnty. Sheriff‘s Dep‘t, 500 F.3d 1185, 1196 (10th Cir.2007) (“This is a ‘duty dictated by common sense lest a disabled [individual] keep his disability a secret and sue later for failure to accommodate.’ “) (alteration in original) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.1996)). However, a disabled person‘s failure to expressly “request” an accommodation is not fatal to an ADA claim where the defendant otherwise had knowledge of the individual‘s disability and needs but took no action. See McCoy v. Texas Dep‘t of Criminal Justice, No. C-05-370, 2006 WL 2331055, at *7-8 (S.D.Tex. Aug. 9, 2006) (collecting cases from multiple circuits). Taken together, there is a balance to be struck between a disabled individual‘s need to request accommodations when limitations are not obvious or apparent and a public entity‘s duty to provide accommodations without further notice or a request. Id.
Under the facts here, when a disabled individual such as Greer attends one event at a venue she was otherwise unfamiliar with, that person does not by default gain a prima facie case of discrimination under Title II merely because she is dissatisfied with her seating location and makes no effort to ask the venue‘s staff as to where alternative accessible seating is located or if she and her family can be accommodated. By Greer‘s own admission, she was able to access all aspects of the stadium she attempted to use during her visit—the parking lot, the sidewalks, the ticket booth,
Even setting aside whether Greer sought out any accommodations, her single experience at Berkner B does not reflect RISD‘s accessibility policies or the uncontroverted experiences of other disabled individuals that have regularly attended events at Berkner B. RISD‘s stated policy, uncontroverted by Greer, states: “The District provides accessible parking, an accessible entrance, employees who are available to assist patrons who desire assistance, and an ability for all patrons, including individuals with disabilities, to participate in or view the events and programs at the Berkner B Field. Patrons of the Berkner B Field, including individuals with disabilities and their companions, are provided seating on the track, behind the fence, or any other accessible area so that they can participate in or view the events and programs.” The testimony from two regular attendees of events at Berkner B reinforce the veracity of RISD‘s policy, as both individuals testified that they have always been provided accessible seating with their companions, often on the track, and that neither attendee had difficulties accessing any of the Berkner B facilities, including navigating on the track surface in their wheelchairs. One of the two individuals even noted that a seat on the track provides a better view than a seat in the bleachers. Greer I, 752 F.Supp.2d at 754-55.
While Greer decries the district court‘s reliance on such statements as an improper weighing of evidence at the summary judgment stage, we disagree with Greer‘s characterization. The parties had simultaneously submitted cross-motions for summary judgment. Thus, what at first glance may appear to be a weighing of evidence is actually a sequential analysis of each party‘s motion. Although the district court announced its decision on each party‘s respective motion in a single paragraph, the motions were considered separately. Id. at 755-56.
First, the district court denied Greer‘s motion, finding that she had not presented a prima facie case of discrimination. Second, the court granted RISD‘s motion, on the basis of evidence it offered, finding that events at Berkner B are accessible to wheelchair-bound individuals based on Greer‘s own testimony and sworn testimony of other wheelchair-bound individuals that regularly attend events at the stadium. Though not highlighted explicitly in the district court‘s opinion, Greer, as the nonmoving party in response to RISD‘s motion, needed to come forward with affidavits or other similar evidence to show that a genuine issue of material fact exists with respect to program access. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In summary, what the district court, and now this court, is presented with are Greer‘s allegations that her experience watching a football game at Berkner B was unsatisfactory in her opinion. While unfortunate, this is not sufficient to present a prima facie case of disability discrimination under the program access standard and the district court‘s grant of summary judgment in favor of RISD was correct.
C. Greer‘s Motion for Sanctions
Greer also contends the district court erred by failing to grant her motion for sanctions against RISD based on the school district‘s failure to produce a specific document defined by
Under the highly deferential abuse of discretion standard, we cannot say the district court erred in denying Greer‘s motion. The district court‘s order in response to Greer‘s motion for findings of fact on her motion for sanctions set forth six logical and well-reasoned findings for denying the motion for sanctions. In summary and most notably, the court noted that it allowed RISD to assert the undue burden affirmative defense “in light of the scattershot allegations [Greer] pled in her Complaint, and the potential issues with regard to [Greer]‘s standing to assert many of her claims under the [ADA],” that the undue burden defense was not asserted in bad faith, and that consideration of the defense was mooted when Greer failed to meet her prima facie burden for an ADA discrimination claim. Greer v. Richardson Indep. Sch. Dist., 752 F.Supp.2d 746 (N.D.Tex.2010) (Order regarding
While Greer strenuously argues that RISD failed to show that any undue burden analysis was ever made and thus RISD and its counsel asserted a defense that had no evidentiary basis in fact, we disagree. As RISD notes, there is little case law on point as to what is required to satisfy the requirement under
In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion.
Greer focuses on what she claims is RISD‘s failure to demonstrate that any undue burden analysis was ever made as evidenced by RISD‘s failure to produce a “written statement” pursuant to
Here, RISD had a nonfrivolous argument that it already provided program access to events at Berkner B stadium and thus did not believe it was required to take any actions that would fundamentally alter the facility or the programs offered at Berkner B. RISD produced evidence about its evaluation of Berkner B‘s facilities and the budgeting process used to allocate funds for upgrades or modifications to all of the school district facilities, explaining that available funds had been allocated first to student instruction facilities and the district‘s “A” stadiums which serve varsity athletic events and are more heavily attended. Under this reasonable belief and a plain reading of
D. Application of Frame v. City of Arlington
While disposing of most of Greer‘s claims on summary judgment in favor of RISD, the district court reserved two issues with respect to whether the Berkner B parking lot contained a sufficient number of accessible parking spaces and whether a wheelchair ramp from the parking lot to a sidewalk serving an adjacent street was ADA compliant. Following this court‘s opinion pursuant to a panel rehear-
In her opening brief filed in March 2011, Greer argued the district court misinterpreted the opinion in Frame II and thus improperly granted summary judgment to RISD. After briefing was complete, this court issued an en banc decision, Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011) (en banc) (“Frame III“). At the direction of the court, the parties filed letter briefs to address how the en banc decision in Frame may affect our review of the district court‘s decision on the issue of the parking lot and the ramp.
Frame III reversed the panel‘s opinion in Frame II that a private right of action regarding a non-compliant sidewalk only existed in the context that the sidewalk was a gateway to some other service, program, or activity. Frame II at 488-90. Instead, the en banc court held that a non-compliant newly constructed sidewalk itself provided a private right of action under Title II without regard to the proximity of the sidewalk to the public service or program. Frame III at 235. While the district court considered the parking spaces and ramp in the context of the gateway analysis, Greer II at 763, Frame III nonetheless does not change the outcome here.
The parking lot and the ramp have both been modified or constructed after 1992 and thus do not fall within the more flexible guidelines for existing facilities. Instead, the ADAAG guidelines apply. The record establishes that the parking lot servicing the Berkner B stadium contains six accessible parking spaces, which complies with ADAAG guidelines for the number of accessible spaces. Additionally, the modifications to the parking lot, including allocation and placement of accessible parking spots, and the construction of the wheelchair ramp were completed pursuant to an inspection by a Registered Accessibility Specialist, which demonstrates compliance with the Texas Accessibility Standards (“TAS“). The TAS have been certified and approved by the Department of Justice as being equivalent to the ADAAG. Architectural Barriers Frequently Asked Questions, Tex. Dep‘t of Licensing & Regulation, http://www.tdlr.state.tx.us/ab/abfaq.htm# 13 (“The Texas Accessibility Standards are as stringent (in some instances more stringent) as the ADAAG and have been deemed equivalent to the ADAAG by the United States Department of Justice. The TAS received equivalency certification on September 23, 1996.“). Accordingly, we affirm the district court‘s grant of summary judgment in favor of RISD on these two issues. Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir.2011) (“[W]e may affirm a grant of summary judgment on any basis supported by the record.“) (internal quotation marks omitted).
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.