Plaintiff Nancy Smith brings suit against Defendant SMG and Defendant Kyle France in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District ("LSED"). Plaintiff brings claims under (1) Title II of the ADA against France, in his official capacity, for injunctive relief;
(1) train SMG staff members on SMG's policy that gives priority for elevator use to patrons with disabilities over other patrons and SMG employees,
(2) adopt a written policy and train employees on the policy to require that, when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to *495sit in the conventional seat, the SMG employee affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat, and
(3) adopt a written policy and train employees on the policy to require thаt, when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome ("Superdome").
On her damages claim, Plaintiff seeks nominal and compensatory damages. Plaintiff also seeks attorney's fees and costs under the ADA
The matter was tried before the Court, sitting without a jury, on Monday, March 11, 2019.
Having considered the testimony and evidence at trial, the arguments of counsel, and the applicable law, the Court now issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. To the extent any findings of fact may be construed as conclusions of law, the Court adopts them as such. To the extent any conclusions of law may be construed as findings of fact, the Court adopts them as such.
FINDINGS OF FACT
The facts found by the Court аre largely not in dispute. Plaintiff offered her own testimony and the testimony of her daughter Braeden Smith regarding Plaintiff's experience leading up to and during the Guns N' Roses concert at the Superdome on July 31, 2016. The testimony of Braeden Smith was consistent in all material respects with the testimony of Plaintiff Nancy Smith. Defendants did not offer testimony contradicting the testimony of Plaintiff and her daughter. Defense witnesses Brian Brunet, the SMG Senior Assistant Box Office Manager, and Laurie Ducros, the SMG Guest Services Manager, testified as to SMG's policies regarding the ticket sales, staff training, and accommodations for patrons with disabilities. Plaintiff did not offer testimony contradicting the testimony of the defense witnesses.
Plaintiff Nancy Smith is an amputee who had a complete hip disarticulation of her left leg performed in 2015. Her daughter Braeden Smith bought tickets for herself and her mother via telephone for a Guns N' Roses concert to take place at the Superdome on July 31, 2016. Braeden Smith believed she had called the Superdome Box Office, but she in fact called Box Office Ticket Center LLC. The Box Office Ticket Center LLC customer service representative who sold Braeden Smith the tickets assured her the seats were wheelchair-accessible.
Box Office Ticket Center LLC is a third-party ticket vendor that sells tickets on the secondary ticket market. It purchases tickets from the SMG box office or from Ticketmaster LLC, which is the only authorized third-party vendor for Superdome *496tickets. Box Office Ticket Center, LLC then resells the tickets at a profit.
On July 31, 2016, Plaintiff Nancy Smith arrived at the Superdome with her daughter Braeden Smith prior to the start of the concert. They entered the Superdome. Neither Nancy Smith nor Braeden Smith testified as to the gate they used to enter the Superdome. Upon entering the Superdome, they were directed to turn left to take the elevators down to their ground floor seats. Plaintiff and her daughter turned left as directed, but SMG staff denied them access to the three elevators they encountered in that area. SMG staff did not inform Nancy Smith and Braeden Smith as to why they could not use these elevators. Nancy Smith and Braeden Smith eventually were taken to the ground floor, on a freight elevatоr, by a person who appeared to be a member of the backstage crew.
When Nancy Smith and Braeden Smith reached the ground floor, they spoke to an SMG staffer who guided them to their ticketed seats. They discovered the seats were not wheelchair-accessible. Plaintiff told the staffer she had purchased wheelchair-accessible seats and that she could not sit in the conventional seat for safety reasons. She asked the staffer to remove the existing seat in the space, which was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer refused and did not offer Plaintiff the alternative of switching to a wheelchair-accessible seat. Plaintiff believed she had no option but to transfer out of her wheelchair and into the conventional seat if she was going to see the concert. The SMG staffer then took Plaintiff's wheelchair to the left side of the stage and placed it behind a barricade, out of Plaintiff's line of sight.
During the concert, Plaintiff felt anxious, uneasy, and vulnerable because she was not allowed to sit in her wheеlchair and because she could not see where it was stored. Plaintiff could not see the band on stage because her view was obstructed by others who were standing. She had been excited about attending the concert, but the experience was ruined for her. After the concert, Plaintiff's wheelchair was returned to her.
Laurie Ducros, the SMG Guest Services Manager, offered testimony about SMG policies. Under SMG policy, when an elevator at a concert leads to a private or restricted area on the ground level, the elevator is restricted. Elevator operators are instructed not to take any patrons to the ground level in restricted elevators. They are instructed to direct patrons to the next available elevator.
The elevator policy is confirmed by the SMG ADA pamphlet, introduced as Exhibit 4 at trial. According to a map of the Superdome in the pamphlet, the Superdome has 17 elevators, numbered 1-14, 2A, 7A, and 8A. Thirteen of these elevators are accessible to patrons with disabilities. The only elevators not accessible to patrons with disabilities are Elevators 5, 10, 13, and 14, which are labeled on the map as "freight only." Elevators 3, 4, 2A, 7A, and 8A do not service the ground level. This information is confirmed by a printout from the Superdome website, which was introduced as Exhibit 7 at trial.
Superdome staff members are trained annually, prior to the beginning of the New Orleans Saints football season. A portion of the training is devoted to accessibility for disabled patrons and the requirements of the ADA. Staff members hired during the year are required to attend a new hire orientation with similar information on SMG's ADA policies. Portions of the PowerPoint presentations SMG uses at these training sessions for new hires were introduced at trial as Exhibits 4 and 5.
*497It is SMG's usual practice and policy to reserve or "hold back" from sale a certain number of ADA-compliant wheelchair-accessible seats in various areas of the Superdome for use in case a disabled patron requests to be relocated on the day of a concert. If a patron requests to transfer from a conventional seat to an accessible seat, the patron is directed to the Guest Services Desk or Guest Relations Center, where the ticket may be exchanged. The policy regarding holding back seats is posted on the Superdome website, a printout of which was introduced at trial as Exhibit 7. For the Guns N' Roses concert, SMG sold approximately sixty (60) accessible seats and reserved or "held back" approximately one hundred and fifty (150) accessible seats.
Under SMG's ticket transfer policy, SMG staff members do not affirmatively offer wheelchair users the relocation option because SMG does not wish to assume wheelchair users who purchase tickets for conventional seats cannot use those seats. SMG staff only offer the option when a wheelchair user informs an SMG staff member he or she cannot get out of the wheelchair, cannot sit in the conventional chair, or would be uncomfortable sitting in the conventional chair.
SMG's policy with respect to wheelchair storage is that, when a staff member sees a wheelchair user leaving a wheelchair on the Superdome concourse or in an aisle, the staff member аpproaches the wheelchair user and informs the patron that the wheelchair cannot be left on the concourse or in the aisle. The staff member then offers the patron two options: either (1) to check the wheelchair at the Guest Relations Center at Gate A and be wheeled to the conventional seat by SMG staff in an SMG wheelchair or (2) to have a companion wheel the patron to his or her seat and then check the wheelchair at the Guest Relations Center. SMG staff are trained to store the wheelchairs only at the Guest Relations Center. The Superdome website states wheelchairs are available for checkout at the Guest Relations Center at Gate A.
CONCLUSIONS OF LAW
I. Title II
Plaintiff brings a claim against Defendant Kyle France, in his official capacity as Chairman of the Board of Commissioners of the LSED, for injunctive relief under Title II of the ADA. Because France is sued in his official capacity as Chairman of the Board of Commissioners of the LSED, the claim for injunctive relief against him is, in effect, a claim for injunctive relief against the LSED.
Title II prohibits discriminatiоn by public entities, including the LSED.
To succeed on a claim under Title II of the ADA, a plaintiff must prove: '(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.'14
A. First Element
The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities of such individual."
B. Second Element
To establish the second element of her Title II claim, Plaintiff must show she was "denied the benefits of services, programs, or activities" for which the LSED is responsible, or was "otherwise discriminated against" by the LSED.
The LSED is a public entity subject to the requirements of Title II.
In determining whether conduct by the LSED as a public entity constitutes a denial of benefits of services, programs, or activities or otherwise discriminates, the Court must consult regulations promulgated by the Attorney General.
Because the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect. We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. ,24 is in order; it is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.25
Plaintiff is a wheelchair user who was not offered the option to transfer to a wheelchair-accessible seat. The subpart of the Title II regulations entitled "General Requirements" includes specific requirements for ticketing, including rеquirements for individuals with disabilities who purchase tickets for non-wheelchair-accessible seats on the secondary ticket market.
1. Regulatory Provision About Secondary Ticket Market
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
The regulations implementing Title II include a specific provision with respect to providing access to wheelchair users who purchase tickets for non-wheelchair-accessible seats on the secondary ticket market.
If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the sеcondary market, a public entity shall make reasonable modifications to its policies, *500practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public entity.
This regulation was promulgated in 2010.
As long as there are vacant wheelchair spaces, requiring venues to provide wheelchair spaces for patrons who acquired inaccessible seats and need wheelchair spaces is an example of a reasonable modification of a policy under title II of the ADA.... Covered entities are not required to seat every person who acquires a ticket for inaccessible seating but needs accessible seating, and are not required to move any individual who acquires a ticket for accessible seating but does not need it. Covered entities that allow patrons to buy and sell tickets on the secоndary market must make reasonable modifications to their policies to allow persons with disabilities to participate in secondary ticket transfers. The Department believes that there is no one-size-fits-all rule that will suit all assembly areas. In those circumstances where a venue has accessible seating vacant at the time an individual with a disability who needs accessible seating presents his ticket for inaccessible seating at the box office, the venue must allow the individual to exchange his ticket for an accessible seat in a comparable location if such an accessible seat is vacant. Where, however, a venue has sold all of its accessible seating, the venue has no obligation to provide accessible seating to the person with a disability who purchased an inaccessible seat on the secondary market. Venues may encourage individuals with disabilities who hold tickets for inaccessible seating to contact the box office before the event to notify them of their need for accessible seating, even though they may not require ticketholders to provide such notice.29
The guidance explicitly adopts the holding of Independent Living Resources v. Oregon Arena Corp. ,
On at least several occasions, wheelchair users who attempted to purchase tickets for an event were told that no wheelchair tickets were available, even though ambulatory patrons were able to purchase tickets for the same event. On other occasions, wheelchair users were "steered" to distant corners of the arena (such as Level 7) while ambulatory friends were able to purchase good tickets for the same event.31
Following a bench trial, the court in Independent Living found the ticket sale policy "effectively preclude[d] wheelchair users from obtaining the same benefits available to ambulatory patrons" by precluding them from "accepting a gift ticket, going to the game with a friend who has an extra ticket, sharing a season ticket, purchasing a ticket for an individual game from a season ticket holder, and similar options each of which is available to ambulatory patrons."
[W]heelchair users must have the same opportunity as other patrons to use tickets acquired through the secondary market (e.g., going to the game with a friend who has an extra ticket, using a complimentary ticket obtained from an employer or family member, sharing a season ticket, purchasing a ticket through the classifieds, etc. ). Accordingly, although wheelchair users are strongly encouraged to purchase tickets for wheelchair spaces when available, if an individual needing a wheelchair space arrives at a game or other event with a ticket for a conventional seat, that individual must be seated in an equivalent or better wheelchair space.34
In the instant case, Plaintiff bought her ticket from Box Office Ticket Center LLC on the seсondary ticket market. Plaintiff told the SMG staffer she had purchased a ticket for a wheelchair-accessible seat and that she did not want to sit in the conventional seat for safety reasons. She asked the staffer to remove the existing seat in the space, which was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer refused, but did not offer Plaintiff the alternative of moving to a wheelchair-accessible seat. Title II regulations explicitly state that transferring patrons with disabilities to wheelchair-accessible seating is a reasonable modification. Although the guidance accompanying the regulation states "there is no one-size-fits-all rule that will suit all assembly areas," it also states a venue "must allow the individual to exchange [her] ticket for an accessible seat in a comparable location if such an accessible seat is vacant."
Unlike in Independent Living , in which it was clear the defendant failed to modify its policies, the Court is unable to ascertain whether the SMG staffer's actions were a result of SMG's failure to modify its policies or the staffer's lack of training on existing policies. Title II regulations require reasonable modifications not only to policies, but also to procedures and practices. Regardless of whether the staffer's actions were a result of the absence of a clear policy or to a failure to train staff members on a policy, SMG failed to modify its policies, practices, and procedures to allow Plaintiff to exchange her ticket, in violation of
2. Program Accessibility
As another basis for the second element of Plaintiff's Title II claim, Plaintiff argues the LSED discriminated against her because the Guns N' Roses concert was not readily accessible to her.
A public entity shall operate each service, program, or activity so that the *502service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.
Failure to operate a program so that it is readily accessible to individuals with disabilities constitutes discrimination.
In Greer v. Richardson Independent School District , the plaintiff could not access the bleachers at a high school football game because they were not wheelchair-accessible.
In this case, Plaintiff told an SMG staffer that she had intended to purchase a wheelchair-accessible seat and thought she had done so, because she did not want to sit in a conventional seat for safety reasons. Although she did not specifically request a transfer to an accessible seat, she did rеquest the accommodation of removing the conventional seat and putting her wheelchair in its place. Although her requested accommodation could not be granted, the SMG staffer could have otherwise accommodated her disability by offering her the option to transfer to an accessible seat. Instead, she required that Plaintiff sit in the conventional seat and took her wheelchair away from her. Unlike the plaintiff in Greer , Smith did interact with a staffer and request an accommodation. She also expressed her concern about the SMG staffer's taking away her wheelchair. Unlike in Greer , in which the plaintiff was still able to watch the football game, Smith's view was obstructed by standing patrons during most of the concert, and she was unable to enjoy the concert because of her anxiety about her personal safety and about the security of her wheelchair. As a result, the Court finds, when the activity is viewed in its entirety, the Guns N' Roses concert was not readily accessible to Plaintiff. As another basis for the second element of her *503Title II claim, Plaintiff has shown SMG denied her ready access tо the Guns N' Roses concert.
Plaintiff also argues she was denied ready access to the Superdome elevators, which contributed to her inability to access the concert. The Court does not agree. Plaintiff testified she was denied access to three elevators, but she ultimately was taken down to the ground floor in a freight elevator by a crew member. No lack of access to elevators prevented her from accessing the Guns N' Roses concert.
Ducros testified that SMG restricts access to some elevators during concerts because the elevators lead to areas on the ground level that are not accessible to the public. She speculated that the elevators to which Plaintiff was denied access may have been restricted. No party introduced evidence on the record or elicited testimony about which elevators Plaintiff attempted to use and whether the public was denied access to these elevators. According to the SMG ADA pamphlet and the Superdome website,
C. Third Element
In determining whether discrimination is by reason of disability, a plaintiff must provide "proof that 'the disability and its consequential limitations were known by the entity providing public services.' "
Mere knowledge of the disability is not enough; the service provider must also have understood the limitations the plaintiff experienced as a result of that disability. Otherwise, it would be impossible for the provider to ascertain whether an accommodation is needed at all, much less identify an accommodation that would be reasonable under the circumstances. Thus, because the ADA does not require clairvoyance, the burden falls on the plaintiff to specifically identify the disability and resulting limitations, and to request an accommodation in direct and specific terms. When a plaintiff fails to request an accommodation in this manner, he can prevail only by showing that the disability, resulting limitation, and necessary reasonable accommodation were open, obvious, and apparent to the entity's relevant agents.44
In this case, Plaintiff requested an accommodation and made clear she was concerned about sitting in a conventional seat without her wheelchair. Furthermore, the Court finds it was open, obvious, and apparent Plaintiff was an amputee whose mobility was limited and that it would be difficult for her to use a conventional concert seat and needed an accommodation. As a result, Plaintiff has established the third element of her Title II claim.
*504Plaintiff has established the elements of her Title II claim that the LSED, through its contractor SMG, discriminated against her. Plaintiff was a qualified individual with a disability. Plaintiff was denied the benefits of the Guns N' Roses concert and discriminated against because the SMG did not make reasonable modifications to its ticketing policies, procedures, and practices and the concert was not readily accessible to her. The discrimination was by reason of disability, as Plaintiff's disability and its resulting limitations were open, obvious, and apparent.
The defendant in a Title II case "may assert an affirmative defense by showing that the requested actions would constitute an undue financial or administrative burden."
II. Title III
Plaintiff brings a claim for injunctive relief against SMG under Title III. Title III provides, "No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation."
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, facilities, privileges, advantages, or accommodations.48
To establish a Title III violation, a plaintiff must show "(1) she has a disability; (2) Defendant owned, leased, or operated a place of public accommodation; and (3) Defendant denied Plaintiff full and equal enjoyment on the basis of her disability."
*505Plaintiff is a qualified individual with a disability for purposes of the ADA. SMG is a private entity that operates the Superdome, which is a place of public accommodation. As a result, the first two elements are satisfied. The Court turns to whether SMG denied Plaintiff full and equal enjoyment of the concert on the basis of her disability.
The regulations implementing Title III provide:
A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.50
This language parallels the language of
The Court applies the same burden of proof as under Title II. Like the regulations implementing Title II, the regulations implementing Title III include the following provision pertaining to seats sold on the secondary ticket market:
(i) A public accommodation shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events.
(ii) If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public accommodation shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vaсant at the time the individual presents the ticket to the public accommodation.52
These requirements are substantially identical to the requirements of the Title II regulations. The guidance interpreting this provision also is substantially identical to the guidance interpreting the Title II regulation on tickets sold on the secondary ticket market.
As a result, with respect to the third element of Plaintiff's Title III claim, the Court finds Plaintiff was denied the full and equal enjoyment of the Guns N' Roses concert. However, the Court also finds Plaintiff has not shown that any difficulty she experienced accessing elevators contributed to a denial of equal enjoyment of the concert.
Plaintiff has established the elements of her Title III claim. SMG has not raised the *506affirmative defense of undue hardship.
III. LHRA
Plaintiff brings a claim for damages against SMG under the LHRA.
No other court has interpreted the LHRA's definition of "discriminatory practice" in the context of disability discrimination. The LHRA establishes the Louisiana Commission on Human Rights, which has the power to "adopt, promulgate, amend, and rescind rules and regulations to effectuate the purposes and provisions" of the LHRA,
[T]o provide for execution within Louisiana of the policies embodied in the Federal Civil Rights Act of 1964, 1968, and 1972 and the Age Discrimination in Employment Act of 1967; ...; to safeguard all individuals within the state from discrimination because of ... disability ... in connection with employment and in connection with public accommodations; [and] to protect their interest in personal dignity and freedom from humiliation.62
The Louisiana Legislature passed the LHRA in 1988.
The Fifth Circuit has noted the LHRA is "substantively similar to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a)."
Based on the similarities between the LHRA and federal antidiscrimination statutes and the Louisiana legislature's explicit reference to federal antidiscrimination law in the LHRA's statement of purpose, the Court holds the LHRA incorporates the definition of disability discrimination found in Title III of the ADA.
IV. Relief
A. Damages
Plaintiff seeks nominal damages and compensatory damages for emotional distress against SMG under the LHRA.
LA. REV. STAT. § 51:2264, governing remedies under the LHRA, provides:
Any person deeming himself injured by any alleged violation of the provisions of this Chapter shall have a civil cause of action in district court to enjoin further violations and to recover the actual damages sustained by him, together with the costs of court and a reasonable fee for his attorney of record, all of which shall be in addition to any other remedies contained in this Chapter.
Although Plaintiff is nоt able to recover damages from SMG under Title III, she may recover from SMG under the statutory text of the LHRA.
At trial, Plaintiff testified she felt anxiety during the concert. She felt trapped and helpless because she was concerned about what would happen if there were an emergency. She had been looking forward to the concert, but she was unable to enjoy it because of the distress she experienced. The testimony of Braeden Smith corroborates and buttresses Plaintiff's testimony. The Court awards Plaintiff $ 20,000 in compensatory damages for emotional distress. Because the Court awards compensatory damages, it need not award nominal damages.
B. Injunctive Relief
Plaintiff seeks injunctive relief under Title II of the ADA against France, in his official capacity as Chairman of the Board of Commissioners of the LSED, and under Title III of the ADA against SMG. Plaintiff seeks an injunction requiring Defendants to do the following:
(1) train SMG staff members on SMG's policy that gives priority for elevator use to patrons with disabilities over other patrons and SMG employees,
(2) adopt a written policy and train employees on the policy requiring that, when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to sit in the conventional seat, the SMG employee affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat, and
(3) adopt a written policy and train employees on the policy requiring that, when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome ("Superdome").
Title II incorporates by reference the remedies of the Rehabilitation Act, which *509authorizes injunctive relief.
The Supreme Court has established the following requirements for plaintiffs seeking permanent injunctions in general:
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.74
The Supreme Court has explained the balancing tests and the flexibility granted to the district courts in determining whether to grant an injunction:
In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.... The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.75
The Fifth Circuit has not addressed the standard for determining еntitlement to injunctive relief under the ADA. Other circuits have found that the traditional equitable considerations listed above apply.
The Court finds the cases from the other circuits persuasive and adopts this test. As set forth below, the Court analyzes the Title II and Title III violations jointly for the first three factors and finds the factors weigh in favor of injunctive relief. As for the fourth factor, the Court analyzes the Title II claim against France in his official capacity separately from the Title III claim against SMG because injunctions against state entities implicate concerns of federalism and comity.
*510With respect to the first factor, the Court has found Smith has shown violations of Titles II and III. Specifically, the Court has found (1) the SMG staffer's failure to offer Plaintiff the option to transfer to a wheelchair-accessible seat reflects SMG's failure to modify policies, practices, and procedures to accommodate individuals who purchase non-accessible seats on the secondary ticket market, in violation of Titles II and III, and (2) the SMG staffer's failure to offer Plaintiff a transfer and depriving her of her wheelchair denied Plaintiff equal access to and enjoyment of the program, in violation of Titles II and III.
"[F]or an injunction to issue based on a past violation, [a plaintiff] must establish that there is 'a real or immediate threat that [s]he will be wronged again.' "
With respect to the second factor, whether the injury may be compensated by other remedies at law, the Court has awarded monetary damages under the LHRA to compensate Plaintiff for her past emotional distress. This relief does not address the prospect of future harm to the Plaintiff. Moreover, the Court has not awarded relief for the ADA violations. "[W]hen a court of equity exercises its discretion, it may not consider the advantages and disadvantages of nonenforcement of the statute, but only the advantages and disadvantages of 'employing the extraordinary remedy of injunction,' over the other available methods of enforcement."
With respect to the third factor, the balance of hardships between Plaintiff and Defendants, the Court finds that any equitable remedies requiring modifications of policies or training programs do not present a significant hardship to Defendants.
With respect to the final faсtor, the public interest, the Court analyzes Plaintiff's claim against France, in his official capacity as Chairman of the Board of the LSED, separately from her claim against SMG. For injunctive relief against France under Title II, in cases in which a plaintiff seeks injunctive relief against a state governmental entity, concerns of federalism and comity weigh against granting injunctive relief.
*511However, Title II explicitly authorizes injunctive relief against public entities.
The Court turns to the analysis of the fourth factor, the public interest, with respect to SMG's Title III violation. Injunctive relief against SMG to remedy its Title III violation, unlike injunctive relief against the LSED, does not implicate concerns of federalism or comity. The Court also orders injunctive relief against Defendant SMG. The parties must meet and confer to attempt to agree on the appropriate injunctive relief.
C. Attorney's Fees and Costs
"Under the ADA, a court 'may allow the prevailing party a reasonable attorney's fee, including litigation expenses, and costs.' "
[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement.... In short, a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.86
Similarly, the LHRA permits plaintiffs to recover "the costs of court and a reasonable fee for his attorney of record."
Plaintiff is a prevailing party on her Title II claim against France, in his official capacity, and her Title III and LHRA claims against SMG. The Court awards Plaintiff attorneys' fees against SMG and against France, in his official capacity. Plaintiff's counsel must file a motion for determination of the amount of attorneys' fees within 10 days of the issuance of these Findings of Fact and Conclusions of Law.
CONCLUSION
Based on the above Findings of Fact and Conclusions of Law, the Court finds that Plaintiff Nancy Smith is entitled to recover from Defendant SMG $ 20,000 in damages for emotional distress. The Court further finds Plaintiff is entitled to injunctive relief, attorneys' fees, and costs against SMG and against Defendant Kyle France, in his official capacity as Chairman *512of the Board of Commissioners of the Louisiana Stadium and Exposition District. The Court will enter a judgment to that effect by separate order.
IT IS ORDERED that the parties meet and confer to attempt to agreе on the appropriate injunctive relief. The parties will file jointly, within 30 days of the issuance of these findings of fact and conclusions of law, a proposed consent judgment addressing how SMG and the Louisiana Stadium and Exposition District will ensure their policies and procedures provide that:
(1) when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to sit in the conventional seat, an SMG employee will affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat;
(2) when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also will inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome; and
(3) SMG employees are adequately trained on these policies.
IT IS FURTHER ORDERED that counsel for Plaintiff Nancy Smith file a motion for determination of the amount of attorneys' fees by no later than Thursday, May 23, 2019 at 5:00 p.m.
Notes
The Court has found the LSED, which prеviously was named as a Defendant, is entitled to sovereign immunity on Plaintiff's claims against it. R. Doc. 90. The Court found France, sued in his official capacity, is entitled to sovereign immunity on Plaintiff's damages claim against him.
La. Rev. Stat. § 51:2231 et seq. The parties also refer to this act as the Louisiana Commission on Human Rights or the "LCHR."
La. Rev. Stat. § 52:2264.
R. Doc. 93 (minute entry).
At trial, Ducros testified the policies are codified in the Team Member Playbook." The Team Member Playbook was not provided to the Plaintiff in the course of discovery and was not admitted as an exhibit at trial. As a result, the Court does not consider it.
Ex. 7.
See Kentucky v. Graham ,
Title II defines "public entity" as "any State or local government [or] any department, agency, special purpose district, or other instrumentality of a State or States or local government."
Wells v. Thaler ,
Wells v. Thaler ,
Title II defines a "public entity" as "any department, agency, special purpose district, or other instrumentality of a State or States or local government."
28 C.F.R. pt. 35, app. B.
See Olmstead v. L.C. ex rel. Zimring ,
Olmstead ,
In her Amended Complaint, Plaintiff does not allege a violation of this specific provision, but she alleges the violation of nearly identical provisions in the regulations implementing Title III. R. Doc. 5 at 8, ¶ 38; 9, ¶ 40.
In her Amended Complaint, Plaintiff enumerates various regulatory provisions she alleges were violated. Id. at 11, ¶ 52.
28 C.F.R. pt. 35, app. A.
28 C.F.R. pt. 35, app. A. (emphasis added).
Exs. 4, 7.
Windham v. Harris Cty., Texas ,
Greer ,
Doe v. Ortho-La Holdings, LLC , No. CV 17-8948,
Johnson v. Gambrinus Co. ,
Compare 28 C.F.R. pt. 36, app. A to 28 C.F.R. pt. 35, app. B.
See Gambrinus Co. ,
La. Rev. Stat. § 51:2231, et seq. Plaintiff brought the claim against all Defendants, R. Doc. 5 at 16-17, but subsequently moved to dismiss with prejudice her claim as against the LSED and France, R. Doc. 60, granted R. Doc. 62. See R. Doc. 70 at 1 (listing remaining claims).
La. Rev. Stat. § 51:2247.
La. Rev. Stat. § 51:2247. The LHRA provides the following definition of disability:
(3)(a) "Disability" means a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of such impairment, or being regarded as having such an impairment. For purposes of all laws which incorporate by reference, apply to, or rely for meaning upon the term disability as defined herein, the terms used in this definition have the following meanings:
(i) "Physical impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
...
(iii) "Major life activities" includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
La. Rev. Stat. § 51:2232(3)(a).
The LHRA defines "place of public accommodation" as "any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public, or which is supported directly or indirectly by government funds." La. Rev. Stat. § 51:2232(9).
La. Rev. Stat. § 51:2235.
La. Rev. Stat. at § 51:2231(A).
Act No. 886,
La. Rev. Stat. § 51:2247 (1988) (amended 1993).
Pub. L. No. 101-336,
Act No. 820,
Semien v. Pizza Hut of Am., Inc. ,
La. Rev. Stat. § 51:2247.
42 U.S.C. § 2000a(a).
When the Louisiana Supreme Court has not addressed an issue of state law interpretation, the Court must "make an Erie guess and determine ... how that court would resolve the issue if presented with the same case." In re Katrina Canal Breaches Litig. ,
eBay Inc. v. MercExchange, L.L.C. ,
Weinberger v. Romero-Barcelo ,
See, e.g. , C.B. v. Bd. of Sch. Comm'rs of Mobile Co., AL ,
Hainze v. Richards ,
R. Doc. 87.
United States v. Oakland Cannabis Buyers' Co-op. ,
See Rizzo v. Goode ,
See, e.g. , Chaffin ,
Shelton v. Louisiana State ,
Farrar v. Hobby ,
La. Rev. Stat. § 51:2264.