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Falls v. Board of Commissioners of New Orleans Regional Transit Authority

United States District Court, E.D. Louisiana

June 21, 2017

FRANCIS FALLS, ET AL
v.
BOARD OF COMMISSIONERS OF THE NEW ORLEANS REGIONAL TRANSIT AUTHORITY, ET AL

          ORDER AND REASONS

          KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         This 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.

         On 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.

         II. Motion to Determine Damages

         A. Background

         In 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.

         In 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.

         B. Standard of Review

         The 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.”).

         “The 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).

         C. Analysis

         Here, 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.

         1. Plaintiffs Are Qualified Individuals Under the ADA

         Under 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)).

         The 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.

         In 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.

         2. Being Discriminated Against by a Public Entity

         In 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).

         First, 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.

         Here, 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.

         Second, 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 recently explained:

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).

         Here, 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.

         3. Plaintiffs Were Discriminated Against By Reason of ...


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