This week’s blog entry focuses on what happens if assuming for the sake of argument, renovations are not readily achievable at a place of public accommodation, whether that ends the analysis. The answer is no. The case also discusses just how the burden of proof works with respect to claiming that an accommodation is readily achievable.  Our case of the day is Lopez v. Catalina Channel Express Inc. 10, 974 F.3d 1030 (9th Cir. 2020), here. This case also sets an Understanding the ADA record for being decided six years before blogging on the case. Even so, the case is worth blogging on for the issues it discusses. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of who bears the burden of proof at summary judgment with respect to whether an architectural barrier is or is not readily achievable; court’s discussion of how even assuming that removal of the architectural barrier is not readily achievable, alternative solutions still need to be explored; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Daniel Lopez is confined to a wheelchair due to a disability and alleges that he was unable to use the restroom aboard the Jet Cat Express, a passenger vessel sailing between Long Beach and Santa Catalina Island, California, because the restroom’s door was too narrow to allow his wheelchair to enter resulting in him soiling himself. Lopez sued Catalina Channel Express, Inc. (“Catalina”), which owns and operates the vessel, under the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”) for failing to widen the vessel’s restroom door.

 

Catalina has not altered the restroom in the Jet Cat Express since it was built in 2001. According to Tony Ross, Catalina’s Vice President of Vessel Engineering, no passenger—other than Lopez—has ever reported any difficulty accessing the restroom. Ross also testified that the sliding “pocket door” creates a 26-inch-wide entryway when fully opened and the door cannot be widened because its handle is placed three inches from the outer edge of the door. According to Ross, there are two reasons why widening the restroom door is not readily achievable. First, “installing a different type of handle at the outer edge of the ‘pocket door’ . . . may make it more likely that passengers’ hands would be injured in the doorway when closing the door, due to the constant movement of the vessel.” Second, Catalina “cannot structurally alter the restroom without negatively impacting the stability of the vessel . . . [which] is a threat to the safety of navigation.” Specifically, Ross explained:

 

“[M]odifications and alterations to a vessel can negatively impact the stability of the vessel in many ways. For example, here, in order to expand the doorway of the disabledaccessible restroom on the Jet Cat Express, the structure of the restroom itself would need to be expanded which, in turn, would impact the structure of the adjoining restroom. As walls shift, the vessel’s overall weight changes. These changes may cause the overall center of gravity (“COG”) of the vessel to move, and the freeboard to be reduced. These two factors affect the stability of a vessel. . . . Simply put, as the COG moves and the amount of freeboard becomes lower, the vessel becomes more susceptible to unstable situations.”

 

In other words, Ross declared that widening the vessel’s restroom door is not readily achievable

 

The district court denied Lopez’s motion for summary judgment and instead granted summary judgment to Catalina on Lopez’s ADA claim. The district court also refused to exercise supplemental jurisdiction over Lopez’s Unruh Act claim and Lopez appealed.

 

II

Court’s Discussion of Who Bears the Burden of Proof at Summary Judgment with Respect to Whether an Architectural Barrier Is or Is Not Readily Achievable

 

  1. A passenger vessel like the vessel used by Lopez is a place of public accommodation. As such, the place of public accommodation has a duty to make sure that individuals with disabilities can fully enjoy the facilities.
  2. To prevail, Lopez has to show that: 1) he is a person with a disability; 2) Catalina is a private entity owning, leasing, or operating a place of public accommodation; and 3) Catalina discriminated against him by denying him public accommodation because of his disability.
  3. Neither party disputes that Lopez was a person with a disability and that Catalina is a place of public accommodation. The only question is whether Catalina discriminated against him by denying him public accommodations because of his disability. That is, whether any barriers interfered with Lopez’s ability to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of the facility.
  4. Discrimination under Title III of the ADA specifically includes failing to remove architectural barriers in existing facilities when that removal is readily achievable. See 42 U.S.C. §12182(b)(2)(A)(iv).
  5. Even if an entity can demonstrate that the removal of a barrier is not readily achievable, the entity is still liable under the ADA if it fails to make its goods, services, facility, privileges, advantages, or accommodations available through alternative methods so long as such methods are readily achievable. See 42 U.S.C. §12182(b)(2)(A)(v).
  6. Title III of the ADA is silent as to who bears the burden of proving at summary judgment that removal of an architectural barrier is or is not readily achievable.
  7. The 10th Circuit was the first Court of Appeals to articulate a two-part burden shifting framework for evaluating whether removing an architectural barrier is readily achievable under the ADA. Under that approach, the plaintiff must initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances. If the plaintiff meets that initial burden, the defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable. This approach was adopted by the Eighth and 11th Circuits as well. The Second Circuit modified the test slightly by requiring a plaintiff to first articulate a plausible proposal for barrier removal and then recognizing that the defendant may counter the plaintiff’s showing by meeting its own burden of persuasion and establishing that the costs of plaintiff’s proposal would in fact exceed its benefits.
  8. Regardless of the jurisdiction, it is clear that the defendant bears the ultimate burden of proving the affirmative defense, but the initial burden of proof is on the plaintiff. Such an approach makes sense because a plaintiff must make clear what accommodation is needed and disability accommodations are so specific to the individual.
  9. Placing the initial burden of proof on the plaintiff to plausibly show how removal of an architectural barrier is readily achievable makes sense for several reasons: 1) 42 U.S.C. §§12182(b)(2)(A)(iv), (v) read together require the removal of an architectural barrier unless such removal is not readily achievable. Subsection (iv) starts by requiring defendants to remove architectural barriers where the removal is readily achievable. Subsection (v) then offers the defendant an opportunity to avoid liability by demonstrating that the removal of a barrier is not readily achievable. In other words, only if the plaintiff makes a plausible showing that the barrier removal is readily achievable, does the defendant then have to negate that showing by proving that the removal is not readily achievable; 2) burden shifting frameworks have been used in other sections of Title III of the ADA. For example, the same analysis has been used when dealing with the question of whether reasonable modifications to a place of public accommodation policies, practices, or procedures that allow individuals with disabilities to enjoy their goods and services are in order; 3) a burden shifting approach is also used in employment claims under Title I of the ADA when it comes to an employee seeking a reasonable accommodation. For example, in that situation, an employee must initially prove that the accommodation seems reasonable on its face. If that accommodation is reasonable on its face, then the defendants have to show circumstances demonstrating an undue hardship; and 4) disparate treatment cases also use a burden shifting approach.
  10. With respect to historical buildings, Ninth Circuit case law has held that the initial burden of proof is on the defendant, which makes sense when historical buildings are involved because a defendant is the one possessing the best understanding of the circumstances under which the historical designation might be threatened. The defendant is also in the best position to discuss the matter with the applicable historical commission to request an opinion on proposed methods of barriers removal. Those considerations do not apply outside of the historic building context.
  11. Even though every Circuit applies a burden shifting framework when addressing removal of architectural barriers at summary judgment, the initial burden on plaintiffs varies. In the 10th Circuit, a plaintiff must provide precise cost estimates and a specific design regarding their proposed accommodation. However, the Second Circuit only requires a plaintiff to articulate a plausible proposal for barrier removal, the costs of which on their face do not clearly exceed their benefits.
  12. The Second Circuit approach with respect to the initial burden of proof makes the most sense because it would be asking too much of plaintiff’s since defendants have the superior knowledge and information regarding their own facilities so as to allow them to quickly and easily counter implausible barrier removal proposals.
  13. 42 U.S.C. §12181(9)(A-D) sets forth four factors for determining whether an action is readily achievable. These factors are: (A) the nature and cost of the action needed; (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
  14. Under the approach with respect to the initial burden of proof being adopted in this decision, a plaintiff is not required to address in detail each of those factors in order to meet their initial burden of plausibly explaining why it is readily achievable to remove an architectural barrier. Instead, once a plaintiff makes a plausible showing that the requested accommodation is readily achievable, it is the defendant that bears the burden of convincing the court those four factors favor the defendant. Therefore, it makes sense for a plaintiff to submit as much evidence as possible pertaining to those four factors in their initial barrier removal proposal even if a plaintiff is not required to do so in order for the plaintiff to increase their chances of defeating a summary judgment motion.
  15. The lower court found that Lopez not only did not address the four factors, but he also did not meet his initial burden of plausibly showing how the costs of widening the restroom door does not exceed the benefits.

 

III

Court’s Discussion of How Even Assuming That Removal of The Architectural Barrier Is Not Readily Achievable, Alternative Solutions Still Need to Be Explored

 

  1. Even assuming that widening the restroom door was not readily achievable, Lopez can still prevail if he establishes that Catalina chose not to make the restroom available to him even though it could have done so through alternative methods without much difficulty or expense. See 42 U.S.C. §12182(b)(2)(A)(v).
  2. Lopez argued he was never offered a different wheelchair that would fit through the restroom’s door. However, he did testify that he rejected Catalina’s offer to transfer him from his wheelchair to the toilet because he is a big guy and has had bad experiences with being dropped with people trying to help him. It is unclear whether Lopez would have accepted an offer to use a narrower wheelchair or whether an offer to transfer him directly to the toilet would satisfy Catalina’s duty to offer alternative method to use the restroom. Finally, the District Court did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. As a result, the District Court’s grant of summary judgment is reversed because it did not evaluate whether Catalina made the restroom available to Lopez through alternative methods. On remand, the district court has to focus on making that determination.

 

 

 

 

IV

Thoughts/Takeaways

 

  1. With respect to actual boats themselves, the Access Board doesn’t have accessibility regulations, though it has been thinking about doing so for some time. It does have regulations dealing with various other aspects of the boating experience.
  2. I do not recommend picking up a person from a wheelchair to carry them up the steps or put them in a bathroom as an alternative method of accessibility. It’s insulting, demeaning, and dangerous.
  3. Title III regulation do contain a list of priorities for a place of public accommodation when it comes to attacking barriers that are readily achievable with respect to removing them. See also this blog entry. Legal counsel can be very helpful when it comes to determining what barriers need to be remediated in what time order.
  4. The specific initial burden of proof for a plaintiff when it comes to alleging that removal of certain barriers are readily achievable varies from jurisdiction to jurisdiction.
  5. When it comes to Title III architectural barriers disputes, the ADAAG acts as a strict liability situation. That is, if the ADAAG has an applicable section and that particular section is not satisfied, liability is automatically placed on the defendant. In this case, there was no particular section applicable. So, the burden shifting questions come into play.
  6. The strict liability nature of the ADAAG combined with an applicable section almost always being available, means that you don’t see a lot of these cases discussing the readily achievable burden of proof, which might help explain why it took six years from this decision for me to blog on the set of issues presented by this case.