United States District Court, E.D. Louisiana
ORDER AND REASONS
WELLS ROBY UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Determine Damages (R. Doc. 57) and a
Motion to Determine Attorneys' Fees and Costs (R. Doc.
61) filed by Plaintiffs Francis Falls (“Falls”),
Mitchell Miraglia (“Miraglia”), and Thad Tatum
(“Tatum”) (collectively “Plaintiffs”)
seeking an order of the Court awarding each Plaintiff $10,
000 in damages as well as $48, 430.50 in attorneys' fees
and $7, 573.96 in costs for all Plaintiffs. The motions are
opposed. R. Doc. 65; R. Doc. 64. Both motions were submitted
on March 22, 2017 and heard without oral argument.
action was initially filed in the District Court on March 28,
2016 seeking injunctive and declaratory relief, damages, and
attorneys' fees and costs pursuant to Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12131
et seq. (“ADA”) and the Rehabilitation
Act of 1973, 29 U.S.C. § 794 et seq.
(“RA”). R. Doc. 1. The Plaintiffs allege that
Defendants the City of New Orleans and the Board of
Commissioners of the New Orleans Regional Transit Authority
have violated the ADA in connection with the bus stop system
in New Orleans. In particular, the Plaintiffs allege that
nearly 94.3% of all bus stops are non-compliant with ADA
requirements. The Plaintiffs argue that the Defendants have
failed to construct or alter bus stops to ensure
accessibility and have failed to provide program access at
the existing bus stops. R. Doc. 1. As such, the Plaintiffs
allege that the Defendants have discriminated against them
and continue to do so by excluding/denying the Plaintiffs the
full and equal benefits of their services and by failing to
have accessible facilities or taking steps to make them
accessible. Id. at p. 16.
December 23, 2016, the Parties consented to proceed before
the undersigned United States Magistrate Judge under the
provisions of 28 U.S.C. § 636(c). Thereafter, on
February 10, 2017, the undersigned approved and ratified the
Parties' Settlement Agreement (R. Doc. 55). R. Doc. 54.
The Settlement Agreement provided for the improvement of
existing ADA compliance procedures, a plan for bringing bus
stops into ADA compliance, the selection by Plaintiffs of
priority bus stops to be brought into compliance, a time
frame for compliance as well as a method for the monitoring
and enforcement of the settlement agreement. R. Doc. 54, p.
3-10. In return, the Plaintiffs agreed to release their
claims for injunctive and declaratory relief against the
Defendants. Id. at p. 10-11. Finally, as part of the
Settlement Agreement, the Parties agreed to submit the issues
of Damages and Attorneys' Fees and Costs for
determination by the undersigned. Id. at p. 10.
Motion to Determine Damages
accordance with the Parties' Settlement Agreement (R.
Doc. 55) and this Court's order (R. Doc. 54), the
Plaintiffs submitted their Motion to Determine Damages (R.
Doc. 57) on February 20, 2017. In total, the Plaintiffs
request $10, 000 each in damages. R. Doc. 57. The Plaintiffs
argue that they are entitled to damages under Title II of the
ADA because they are qualified individuals that were excluded
from participation or denied benefits of services, programs
or activities and that such exclusion or discrimination was
because of their disability. R. Doc. 57-1, p. 12. They argue
that they were discriminated against when the Defendants
failed to modify/construct bus stops in compliance with
applicable standards and when the Defendants failed to
provide program access.
opposition, the Defendants argue that the Plaintiffs are not
entitled to damages because: (i) there is no evidence of
intentional discrimination; and (ii) the Plaintiffs have not
carried their burden of proof to lay out a prima facie case
of discrimination because Tatum is not a qualified individual
and all defendants have offered no evidence of any alleged
discrimination by reason of their disability. R. Doc. 65.
Standard of Review
Plaintiffs have brought claims seeking damages under both
Title II of the ADA and the Rehabilitation Act. “The
Rehabilitation Act and the ADA both prohibit discrimination
against qualified individuals with disabilities; they employ
many of the same legal standards and offer the same
remedies.” Sweeney v. Texas State Univ., No.
14-910, 2016 WL 3829552 at *2 (W.D. Tex. July 11, 2016)
(citing Maples v. Univ. of Texas Med. Branch at
Galveston, 901 F.Supp.2d 874, 878 (S.D. Tex. 2012),
aff'd, 524 Fed.Appx. 93 (5th Cir. 2013)); see also
Miraglia v. Bd. of Supervisors of Louisiana State
Museum, No. 15-4947, 2016 WL 6215976, at *1 n.1 (E.D.
La. Oct. 25, 2016) (citing Frame v. City of
Arlington, 657 F.3d 215, 223-24 (5th Cir. 2011))
(“The ADA and § 504 of the Rehabilitation Act (29
U.S.C. § 794(a)) are generally interpreted in para
materia and employ the same legal standards.
Plaintiff's briefing is limited to Title II which is not
problematic under Fifth Circuit precedent.”).
ADA is a ‘broad mandate' of ‘comprehensive
character' and ‘sweeping purpose' intended
‘to eliminate discrimination against disabled
individuals, and to integrate them into the economic and
social mainstream of American life.'”
Frame, 657 F.3d at 223 (citing PGA Tour, Inc. v.
Martin, 532 U.S. 661, 675 (2001)). Title II of the ADA
provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42
U.S.C. § 12132. Under Fifth Circuit Precedent,
To establish a prima facie case of discrimination under the
ADA, a plaintiff must demonstrate: (1) that he is a qualified
individual within the meaning of the ADA; (2) that he is
being excluded from participation in, or being denied
benefits of, services, programs, or activities for which the
public entity is responsible, or is otherwise being
discriminated against by the public entity; and (3) that such
exclusion, denial of benefits, or discrimination is by reason
of his disability.
Melton v. Dallas Area Rapid Transit, 391 F.3d 669,
671-72 (5th Cir. 2004); Greer v. Richardson Indep. Sch.
Dist., 472 F.App'x 287, 292 (5th Cir. 2012)
(unpublished). Moreover, “[a] plaintiff asserting a
private cause of action for violations of the ADA or the RA
may only recover compensatory damages upon a showing of
intentional discrimination.” Delano-Pyle v.
Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002).
the Plaintiffs seek damages under Title II of the ADA. The
Plaintiffs argue that they are entitled to damages under
Title II of the ADA because they are qualified individuals
that were excluded from participation or denied benefits of
services, programs or activities and that such exclusion or
discrimination was because of their disability. R. Doc. 57-1,
p. 12. The Defendants oppose the award of damages arguing
that (i) there is no evidence of intentional discrimination;
and (ii) the Plaintiffs have not carried their burden of
proof to lay out a prima facie case of discrimination because
Tatum is not a qualified individual and all defendants have
offered no evidence of any alleged discrimination by reason
of their disability. R. Doc. 65. In order for the Plaintiffs
to prevail, they must demonstrate that they are qualified
individuals that were either denied benefits of or otherwise
discriminated against by the Defendants by reason of their
disability. See Melton, 391 F.3d at 671-72.
Plaintiffs Are Qualified Individuals Under the
42 U.S.C. § 12102(1)(A), an individual is disabled under
the ADA where “a physical or mental impairment that
substantially limits one or more major life activities of
such individual.” A “major life activity”
includes, but is not limited to, “caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating,
and working.” 42 U.S.C. § 12102(2)(A).
“Additionally, the 2008 Amendments to the ADA stress
that the definition of disability shall be construed in favor
of a broad number of individuals under the Act, to the
maximum extent permitted by the Act.” Mitchell v.
Universal Health Servs., Inc., No. 15-5963, 2017 WL
993146, at *2 (E.D. La. Mar. 15, 2017) (slip copy) (citing 42
U.S.C. § 12102(4)(A)).
Parties agree that Miraglia and Falls are qualified
individuals under the ADA. R. Doc. 65, p. 14. However, the
Defendants argue that that Tatum should not be considered a
qualified individual because the Plaintiffs fail to address
or present any analysis or explanation as to whether
Tatum's physical impairments results in substantial
limitation in a major life activity. Id. In turn,
the Plaintiffs argue that Tatum is a qualified individual
because he is a C-7 paraplegic as a result of a puncture
wound to the neck in 1988. R. Doc. 57-1, p. 10.
considering Tatum's physical impairments as a result of
his paraplegia, the Court finds that Tatum is a qualified
individual under the ADA. During his deposition, Tatum
explained that as a result of his paraplegia he suffers
limitations to his right side. While Tatum uses a four-legged
walker around his home as a result of physical therapy and
can drive, he strictly uses a wheelchair to get around
outside of his house. R. Doc. 57-14, p. 41, Tr. 15-17. When
he travels around in his car, Tatum relies on others to place
and remove his wheelchair from his car. Id. at p.
66, 117-18. Given his physical limitations as a result of
paraplegia, the Court finds that Tatum is certainly
substantially limited in major life activities as
contemplated by 42 U.S.C. § 12102, including walking,
standing, and bending.
Being Discriminated Against by a Public
order to establish discrimination under Title II, the
Plaintiffs must also demonstrate that they were excluded from
participation in, or being denied benefits of, services,
programs, or activities for which the public entity is
responsible, or is otherwise being discriminated against by
the public entity. When determining if a public entity has
discriminated against an individual in relation to ensuring
public facilities and programs are accessible to disabled
individuals, “Title II differentiates between
‘existing structures, ' i.e., structures built
prior to the Act taking effect in January 1992, and
facilities built or altered after January 1992.”
Miraglia, 2016 WL 6215976, at *1 (citing
Greer, 472 F.App'x at 291).
as to facilities modified or constructed after 1992,
structures that are not built in compliance with the
applicable Americans with Disabilities Act Accessibility
Guidelines (“ADAAG”) guidelines constitute
discrimination. See Greer, 472 F.App'x at 300
(“The parking lot and 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”). As the Fifth Circuit noted in
Frame, “when a city decides to build or alter
a [structure] but makes that [structure] inaccessible to
individuals with disabilities without adequate justification,
the city discriminates within the meaning of Title II.”
657 F.3d at 230-31.
the record reflects that the City has discriminated in
relation to modified or constructed facilities after 1992. In
a report by the Plaintiffs' expert, the Plaintiffs'
expert reported that 60 of 69 newly constructed/modified bus
stops failed to comply with the applicable accessibility
requirements of the ADA. R. Doc. 57-1, p. 18; see
also R. Doc. 57-5. Notably, the Defendants do not appear
to contest these findings nor have they offered an adequate
justification for this failure to comply other than an
acknowledgment that they were allegedly in the process of
developing a plan to make modifications. So, as to newly
constructed/modified structures, the Court finds that the
Plaintiffs have demonstrated discrimination.
as to existing facilities, courts have applied a “less
stringent and more flexible” standard looking at
overall access to the program-“program
accessibility”-rather than technical compliance at each
facility. See Greer, 472 F.App'x at 291
(“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.'”). As the Court has
When considering ADA compliance for existing structures, the
appropriate standard is “program accessibility”
not facility accessibility. Id. For that standard
the federal regulations provide: “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.” 28 C.F.R. §
35.150(a) (emphasis added). Making a program or activity
accessible under this standard does not require a public
entity to make all of its existing facilities accessible to
disabled individuals nor does it require a public entity to
take an action that would place an undue burden on the
entity. Id. § 35.150(a)(1), (3). Furthermore,
the regulations do not provide objective criteria for
evaluating program accessibility. Greer, 472
Fed.Appx. at 291. While an existing structure's
compliance with ADAAG regulations may be informative, program
accessibility is ultimately a subjective determination by
viewing the program or activity at issue in its entirety and
not solely by evaluating individual elements of the facility
where the program is held. Id.
Miraglia, 2016 WL 6215976, at *2 (citing
Greer, 472 Fed.Appx. at 291).
the Court finds that the Defendants have discriminated under
the ADA in regards to existing bus stops. The Manning
Report-a report commissioned by the Defendants prior to the
instant litigation to evaluate the accessibility of every
single bus stop within the New Orleans bus system (R. Doc.
65, p. 11)-determined that 94.3% of the bus stops do not
comply with accessibility requirements of the ADA. R. Doc.
57-1, p. 20. Moreover, each of the Plaintiffs gave anecdotal
evidence of difficulties accessing the bus stops-and the bus
system as a result-given the non-compliance and
inaccessibility including: having to make risky maneuvers and
risking flipping over; having to avoid certain non-compliant
bus stops; getting stuck because a lack of concrete at
certain stops; and having to miss certain buses because
drivers did not want to be liable for having Tatum enter the
bus on the street. Id. at p. 6-11; see,
e.g., 57-14, p. 6-7 (Miraglia), 44-46 (Tatum), 74-77
(Falls). Given the pervasive non-compliance and the
Plaintiffs' difficulties in accessing the bus stops, the
Court finds that in its entirety the Plaintiffs were denied
access and thus discriminated against.
Plaintiffs Were Discriminated Against By Reason of ...